Burgess v. State

• Decision Date: 05 December 1994
• Docket Number: No. S94P1047,S94P1047
• Citation: 450 S.E.2d 680,264 Ga. 777
• Parties: BURGESS v. The STATE.
• Court: Georgia Supreme Court

Page 680

450 S.E.2d 680

264 Ga. 777

BURGESS v. The STATE.

No. S94P1047.

Supreme Court of Georgia.

Dec. 5, 1994.

Reconsideration Denied Dec. 20, 1994.

John R. Martin, Martin Brothers, P.C., Atlanta, Jennifer McLeod, Edwards & McLeod, Douglasville, for Burgess.

David J. McDade, Dist. Atty., Douglasville, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Paige M. Reese, Asst. Atty. Gen., Dept. of Law, Atlanta, for State.

CARLEY, Justice.

Appellant was convicted of one count of malice murder, three counts of armed robbery, and five counts of kidnapping. Having found aggravating circumstances, the jury sentenced him to death for the murder. He received consecutive life sentences for the armed robberies and consecutive 20-year sentences for the kidnappings. Appellant appeals from the judgments of convictions and sentences entered by the trial court on the jury's verdicts. ¹

1. The jury was authorized to find that, on July 16, 1990, appellant and his co-defendant, Norris Young, first approached Laura and Randall Nuttle as they were entering their room at the Best Western Motel in Douglas County. As Young attempted to engage the Nuttles in conversation, appellant forced his way into their room. Appellant was armed with a gold-plated revolver. Appellant and Young made the Nuttles lie down on the bed, tied them up, and then began rummaging through their personal belongings.

The Nuttles testified that the two men were African-American and that one of the men was taller with longer curly hair and carried no weapon, while the other, who displayed the gold-plated revolver, wore a baseball cap and had a gold front tooth. Laura Nuttle testified that, when she heard voices outside the motel room, the man with the revolver left, but the taller man remained in the room. The Nuttles also testified that, when they subsequently heard two shots fired, the man in their room left. Laura Nuttle identified Young as the man who stayed in their room until the shots were fired. Neither of the Nuttles was able to make a positive identification of appellant as Young's accomplice. However, jewelry recovered from appellant's home was determined to belong to Laura Nuttle and appellant's fingerprints were found on a credit card taken from Randall Nuttle.

Regina Thomas, the fiancee of the murder victim, Liston Chunn, testified that, on July 16, 1990, she and Chunn were staying with her children in the same Best Western Motel. That evening, she noticed two African-American men standing in the doorway of the room next to hers. One of the men came over and forced his way into her room with a gold-plated revolver. Her two children were sent to the bathroom. The man told Thomas and Chunn to lie on the floor, but Chunn did not do so. Thomas testified that the gunman shot Chunn after Chunn failed to follow the gunman's order to remove his hand from the pocket of his pants. After the fatal shot was fired, Thomas heard a second person tell the gunman to get out of the room. Thomas further testified that Chunn had a soft drink cup which spilled when the shots were fired. She stated that Chunn "may have thrown" A repairman working at the motel noted the license number of a Volvo speeding away after he heard screaming. The vehicle's registration showed appellant's address. Janice Burgess, wife of appellant, testified that appellant had given her a diamond ring on the night that the crimes had been committed. It was determined that this ring had been taken from Laura Nuttles. Janice Burgess also testified that appellant had a gold tooth which he sometimes wore. In addition to items taken during various robberies, a gold-plated revolver was found in a search of appellant's home. A firearms expert from the GBI Crime Laboratory testified that the bullet which killed Chunn had been fired from this weapon.

                the cup, but that she "was never able to realize the sequence, whether he threw it at the shooter or if he dropped it when he was shot."   While Thomas was not able to identify the gunman, her son picked appellant out of a line-up
                

Young told the police appellant had confided that he shot Chunn and had done so because Chunn "was reaching for something." Appellant, who had been paroled from a life sentence for murder only eight months previously, admitted participating in the armed robberies, but denied being the triggerman.

In addition to this evidence of the crimes committed on July 16, 1990, the State also offered evidence to show that, several days prior thereto, two African-American men had forced their way into Linda Pfeifer's La Quinta Inn room in College Park. One man held a gold-plated gun to her head and demanded money. The robbery was thwarted when her husband and children returned to the room. Her husband had been shot as the men fled, but he was able to see them drive away in a tan Volvo. Appellant was identified from a photo array as one of the robbers.

During the same period of time, a similar robbery involving two African-American men and a gold-plated revolver took place at the Days Inn in Clayton County. Appellant was placed at the scene of this crime by a Days Inn employee who identified him as someone who had been seeking information about a guest at the time of the robbery.

Approximately two weeks prior to July 16, 1990, Billy McNutt was robbed at a Days Inn in DeKalb County by two African-American men, one of whom threatened him with a "yellow" gun. A watch taken from McNutt was later recovered from appellant.

From this evidence, a rational trier of fact could have found appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant made a motion for funds to hire an expert on jury composition. This expert was to determine whether African-Americans were underrepresented on the grand and traverse juries. The denial of this motion is enumerated as error.

The record shows that there was only a 3.4% racial disparity as to the grand jury and a 0% racial disparity as to the traverse jury. Such disparities would be sufficient to withstand any attack that might be made. Cook v. State, 255 Ga. 565, 570(11), 340 S.E.2d 843 (1986); Unified Appeal Procedure, Rule II(A)(6). Therefore, appellant has not shown a reasonable probability that the denial of his motion rendered his trial unfair. Isaacs v. State, 259 Ga. 717, 725(12)(c), 386 S.E.2d 316 (1989); Crawford v. State, 257 Ga. 681, 686(5), 362 S.E.2d 201 (1987).

3. Appellant urges that inquiry into the issue of his parole eligibility was erroneously restricted on voir dire.

The record shows that, on voir dire, appellant was allowed great latitude to pose questions regarding parole, even though such questioning generally is not permitted. Davis v. State, 263 Ga. 5, 7(7), 426 S.E.2d 844 (1993). Further, this court has repeatedly held that in cases, such as this, wherein OCGA § 17-10-31.1(d) is inapplicable, the issue of a defendant's parole eligibility is an inappropriate matter for jury consideration. Quick v. State, 256 Ga. 780, 785(9), 353 S.E.2d 497 (1987); Thornton v. State, 264 Ga. 563, 449 S.E.2d 98 (1994). Thus, a prospective juror's personal views regarding the meaning of a life sentence or parole eligibility 4. In an interracial capital crime, it is permissible to inform the prospective jurors of the victim's race in order to question them about racial bias. Legare v. State, 256 Ga. 302, 303(1), 348 S.E.2d 881 (1986). Thus, it was not error to inform the prospective jurors that some of the victims in this case were white.

are extraneous to his or her ability to serve as a juror, unless it can be shown that those views would seriously impair the juror's performance of his or her duties. Appellant has made no such showing with regard to any of the prospective jurors in this case.

5. Appellant urges that the trial court erred in refusing to strike certain potential jurors for cause based upon their alleged racial bias.

A criminal defendant certainly has a right to explore issues of racial bias during voir dire, thereby enabling him to use his peremptory strikes to remove suspected biased members of the panel. Legare v. State, supra at 303(1), 348 S.E.2d 881. See also Georgia v. McCollum, 505 U.S. 42, ----, 112 S.Ct. 2348, 2358, 120 L.Ed.2d 33 (1992). However, appellant has not cited any authority for the proposition that prospective jurors are required to be stricken for cause absent a showing that they otherwise are unqualified to serve. No such showing was made here.

6. Appellant urges that the trial court erred in refusing to strike certain potential jurors for cause based upon their alleged bias in favor of the death penalty.

While there may have been some initial equivocation in the answers of the contested potential jurors, the record nevertheless supports the trial court's ultimate determination that, based upon the answers to subsequent questions, each was capable of serving as an impartial juror and would weigh evidence in mitigation and seriously consider the option of a life sentence. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Ledford v. State, 264 Ga. 60, 64(6)(b), 439 S.E.2d 917 (1994).

7. Appellant urges that the trial court erred in refusing to strike certain prospective jurors for cause based upon their alleged bias against the return of a verdict of "guilty but mentally retarded."

Again, there may have been some initial equivocation in the answers of the contested potential jurors. However, the record supports the trial court's ultimate determination that, based upon the answers to subsequent questions, each was capable of serving as an impartial juror. A trial court's determination of a potential juror's ability to serve is not limited to the juror's opinion of his own impartiality. Lively v. State, 262 Ga. 510(1), 421 S.E.2d 528 (1992).

8. During voir dire, a prospective juror stated that his wife had...