Bowden v. State

• Decision Date: 18 October 1977
• Docket Number: No. 32163,32163
• Citation: 238 S.E.2d 905,239 Ga. 821
• Parties: Jerome BOWDEN v. The STATE.
• Court: Georgia Supreme Court

Page 905

238 S.E.2d 905

239 Ga. 821

Jerome BOWDEN v. The STATE.

No. 32163.

Supreme Court of Georgia.

Oct. 18, 1977.

Schumacher, Collins & Oates, Samuel W. Oates, Jr., Columbus, for appellant.

E. Mullins Whisnant, Dist. Atty., Lovick P. Anthony, Jr., Asst. Dist. Atty., Columbus, Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Asst. Atty. Gen., Susan V. Boleyn, Staff Asst. Atty. Gen., Atlanta, for appellee.

HALL, Justice.

Jerome Bowden was tried by a jury in the Superior Court of Muscogee County on December 7, 8, and 9, 1976 for murder, armed robbery, aggravated assault, and burglary occurring on October 11, 1976. He was convicted and sentenced to life for armed robbery, ten years and twenty years concurrently for aggravated assault and burglary, and death for murder. He is before this court on appeal and for mandatory review of the death sentence imposed.

I. SUMMARY OF THE EVIDENCE

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

Mrs. Kathryn Stryker and her mother had not answered the door or telephone for several days. Their neighbors became alarmed and police were summoned. When Deputy Sheriff Samuel Profitt first entered the house on October 14, 1976 he noticed the ransacked rooms and then heard labored breathing. Profitt found Mrs. Wessie Jenkins, Mrs. Stryker's mother, lying on a bed in a pool of dried blood, still alive.

Sheriff Profitt then discovered the body of Kathryn Stryker in the kitchen. The victim's skull was beaten in, leaving her features unrecognizable; and a butcher knife was buried deep in her chest. An autopsy revealed that the base of the skull was fractured by the application of extreme force, such as is found in the victims of car accidents and plane crashes. There was also a large open wound behind the ear through which the doctor could see the brain. The knife wound had caused no bleeding, indicating that the victim was already dead when stabbed. Death had occurred three to four days earlier. A blow of great force by a nonsharp object had caused the injuries.

Mrs. Jenkins had suffered a stroke earlier in September, resulting in a partial paralysis that left her bedridden. After she was found on October 14, she was removed to a hospital where she became unconscious and died several weeks later. Mrs. Jenkins, when first admitted, had numerous injuries.

The police received information from one James Graves implicating appellant in the crime, and obtained a warrant for appellant. On October 15, 1976, appellant, who was informed that police were looking for him, turned himself in to an officer and was advised of his rights and taken into custody. He made a statement at police headquarters, which was admitted into evidence at trial following a Jackson-Denno hearing. The statement arose spontaneously from a conversation between appellant and Detective Warren Myles as they sat in a police car while two other detectives were inside a house speaking to the girlfriend of James Graves, to whom they had been directed by appellant. The other two detectives, Hillhouse and Hardaway, then returned to the car and drove appellant back to headquarters. When appellant saw some jewelry that the police had found in a stove on the back porch of Graves' house, he exclaimed that it was what he had hidden in the stove.

In his detailed statement, appellant related that he and Graves, while raking Mrs. Stryker's yard one day, talked about burglarizing her home. Graves lived next door to her. Graves had been inside and had seen things he thought were valuable. The following Monday, armed with a pellet gun to knock anyone out who might interfere, appellant and Graves entered the house about 8:30 A.M., using a screwdriver to open the door. They surprised Mrs. Stryker in the kitchen and Graves hit her twice with the pellet gun, causing her to fall. Graves then unplugged a television and took it over to his yard. Meanwhile, appellant gathered together several pieces of jewelry that he found around the house. The appellant then asked the elderly Mrs. Jenkins the location of a gun in the house. When she would not tell him, the appellant hit her "five or six times" in the face.

The appellant further related how he and Graves searched the house, then left and went to Graves' house. They spent time "laughing and discussing" what they had done. When Graves suggested going to a shopping center and snatching purses, appellant advised him that they should "lay low" for awhile.

After making this statement, appellant additionally stated that he hit Mrs. Stryker twice and then, to "put her out of her misery", stabbed her once with a butcher knife from a drawer. When they returned to Graves' house, they threw wigs they had worn into the trash can and hid the jewelry in the stove. Appellant said Graves later sold the television to a Sammie Robertson and received a partial payment of $10. Graves also sold some coins belonging to the victims.

A wig was found on a couch in Graves' house. Jewelry found by police in the stove included a piece with Mrs. Stryker's name on it, and a pin which was identified as having belonged to Mrs. Jenkins. A pellet gun was found under Graves' house.

Sammie Robertson testified that he received a television set from Graves and gave him $10. This television was seized by police and the model and serial numbers were compared with the numbers on an order form at a repair shop where Mrs. Stryker had ordered some knobs for her television. The numbers matched. The operator of a coin shop stated that he bought some old coins from Graves on October 11.

A strand of hair on the pellet gun was compared with Mrs. Stryker's hair and found to be similar. There were no dissimilar characteristics.

Appellant testified in his own behalf as follows:

He turned himself in to the police and told them he did not participate in the crime. He was questioned by Myles about the crime while they were in the car alone and decided to confess because Myles told him he could keep appellant from getting a death sentence. Appellant knew about the crime because police read him a statement made by Graves while appellant was interrogated. Appellant denied killing Mrs. Stryker and said he confessed because he was afraid. He testified that he did smoke marijuana as he had said in his statement. The district attorney asked if he had smoked the marijuana on the Monday morning "after you went in and killed that woman and beat her mother" and appellant replied, "I guess it was." The defense sought to show he misunderstood the question.

The state recalled witnesses to rebut appellant's testimony that his confession was induced by promises.

II. ENUMERATIONS OF ERROR

1. In appellant's first four enumerations of error he asserts the so-called "general grounds." We have reviewed the evidence summarized above, and conclude that the verdict was amply supported by the evidence and was not contrary to law and equity. Enumeration 2 argues the weight of the evidence; this court considers only its sufficiency, Ridley v. State, 236 Ga. 147, 223 S.E.2d 131 (1976).

Appellant's assertion that the penalty of death is excessive and disproportionate will be considered below in our sentence review.

The first four enumerations are otherwise without merit.

2. In Enumeration 5 appellant urges error in the admission of photographs depicting Mrs. Jenkins' wounds taken some two months after the assault. The medical evidence was that the wounds when photographed were in the healing state, but were not yet completely healed. Appellant does not challenge the accuracy or materiality of the photos, but argues that the prosecution should have had other "less ghastly" photos which could have been used with less prejudice to him.

Appellant does not purport to know whether the prosecution possessed "less ghastly" photos. He offers his opinion that the prosecution in the exercise of good police practice should have taken photos earlier, and he assumes without apparent support that such photos would have been less ghastly. This enumeration of error is frivolous; the state is not required to assemble its case in the fashion least damaging to appellant. "There is abundant case authority that photographs showing an accurate and correct representation of a person or an object material to the issues in the case are admissible. * * * (P)hotographs should not be excluded simply because there is other evidence of the location of the wounds. To rule otherwise would unfairly preclude the state from establishing a material fact by more than one source of evidence. See Johnson v. State, 226 Ga. 511, 175 S.E.2d 840; Henderson v. State, 227 Ga. 68, 179 S.E.2d 76; Sirmans v. State, 229 Ga. 743, 194 S.E.2d 476; Coffee v. State, 230 Ga. 123, 195 S.E.2d 897; Allen v. State, 231 Ga. 17, 200 S.E.2d 106." Floyd v. State, 233 Ga. 280, 283, 210 S.E.2d 810, 813 (1974). (Emphasis supplied.)

The mere fact that photos were taken some time after the infliction of the wounds they depict does not affect their admissibility. Thompkins v. State, 222 Ga. 420, 151 S.E.2d 153 (1966); Anderson v. State, 206 Ga. 527, 57 S.E.2d 563 (1950).

3. In Enumeration 6, appellant alleges error in overruling his objection to the opinion testimony of Blankenship, the state's witness regarding analysis of hair samples. He attacks the qualification of the witness and not the relevancy or materiality of the evidence.

The witness was employed by the Georgia Crime Laboratory as a microanalyst. He held a Bachelor of Science Degree in Chemistry from Georgia Southwestern College, Certificate of Graduation from Florida Tech University, and a Crime Investigation Certificate of Graduation from the FBI Academy at Quantico, Virginia. He had approximately one and one-half years of on-the-job training at the headquarters lab of the Georgia Crime Laboratory in Atlanta, Georgia, and training in trace evidence which includes hair comparisons in a one and one-half year...