Buttrum v. State, 38436
| Decision Date | 08 July 1982 |
| Docket Number | No. 38436,38436 |
| Citation | 293 S.E.2d 334,249 Ga. 652 |
| Parties | BUTTRUM v. The STATE. |
| Court | Georgia Supreme Court |
Stephen A. Williams, Dist. Atty., Dalton, Michael J. Bowers, Atty. Gen., Charles E. Brown, Asst. Atty. Gen., for the State.
The defendant was indicted for the murder of Demetra Faye Parker and the theft of her car. She was convicted on both counts and sentenced to death for the murder and ten years for motor vehicle theft. The jury in recommending the death penalty found the existence of four statutory aggravating circumstances. The victim was raped, sodomized and stabbed 97 times during the early morning hours of September 3, 1980, and her body was discovered by the manager that morning in her room at a motel where she was a guest. The defendant and her husband were also occupants of the same motel. The key to defendant's room was found on the counter in the motel office. Upon inspection of their room, a bloody wash cloth and bar of soap was found. The police were notified and warrants were issued for both defendant and her husband. They were arrested in Florida and returned to Georgia. The husband was tried first, convicted and sentenced to death. He committed suicide while his appeal was pending in this Court.
1. We will deal first with errors claimed during the guilt-innocence phase of the trial.
Enumerations of error 3 and 4 contend the trial court erred in denying defendant's motion for change of venue and failing to disqualify 2 jurors who had formed an opinion as to guilt. The defendant argues that by reason of extensive publicity from all the news media, a fair trial was impossible.
Messer v. State, 247 Ga. 316(4), 276 S.E.2d 15 (1981).
In the present case, 22 prospective jurors were excused for cause. A majority of the 42 prospective jurors put upon defendant stated that they had been exposed to varying degrees of publicity. All stated unequivocally that they could put aside any opinions they had and reach a verdict based on the evidence. There is no merit in these enumerations.
2. Enumeration of error 5 contends the trial court erred in overruling her motion to suppress the evidence obtained from her motel room, statements given to arresting officers, and evidence obtained from the victim's car.
The defendant first argues that evidence obtained from the motel room on September 3 without a search warrant should be suppressed because rent had been paid in advance until September 5, and she and her husband were therefore still in constructive possession. The motel owner-manager found the key to defendant's room on the counter in the office on the morning of September 3, and upon inspection discovered that all of their personal belongings had been removed from the room, whereon he concluded that they had abandoned the premises. Having abandoned the premises, defendant no longer had any expectation of privacy, and may not complain of the entry and search of the room.
The defendant contends that her statement given to FBI agents in Florida should be suppressed because the arrest warrant was invalid for two reasons. First, that the justice of the peace system is unconstitutional because it operates under a fee system, and, secondly, that the justice of the peace who issued the warrant was disqualified because he was also a deputy sheriff.
Appellant's attack upon the present justice of the peace system is without merit. The Georgia statutes subsequent to the 1977 amendment satisfied the constitutional requirements set forth in Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977). Roberts v. State, 243 Ga. 604(5), 255 S.E.2d 689 (1979).
The second contention of defendant--that the issuing magistrate was a deputy sheriff and hence disqualified from issuance of an arrest warrant--must be considered in light of all the facts and requirements of law as to arrest warrants.
In Thompson v. State, 248 Ga. 343, 285 S.E.2d 685 (1981), we disapproved of a per se rule in Fourth Amendment cases. In the present case the defendant was arrested in Florida pursuant to an FBI fugitive warrant issued in good faith reliance on the Georgia arrest warrant regular on its face. While there may have been some technical deficiency in the status of the issuing magistrate, we find nothing which would require suppression of the evidence obtained and of the statements of the defendant made at the time of her arrest. Michigan v. DeFillippo, 443 U.S. 31, 35, 99 S.Ct. 2627, 2630, 61 L.Ed.2d 343 (1979).
The remaining ground of defendant's motion to suppress concerned the evidence obtained from the victim's car. A defendant has no standing to complain of the search of premises or property of another. Cervi v. State, 248 Ga. 325(2), 282 S.E.2d 629 (1981).
3. Enumerations of error 6 and 7 contend that the trial court erred in placing upon defendant the burden of proof as to her special plea of mental incompetency, and in using the word "sanity" rather than "competency" in his charge. The burden of proof upon a special plea is on the defendant. Banks v. State, 246 Ga. 178(3), 269 S.E.2d 450 (1980); May v. State, 146 Ga.App. 416, 246 S.E.2d 432 (1978). Nor do we find any error in the charge on the special plea.
4. Enumeration of error 8 contends the trial court erred in denying defendant funds to employ a psychiatrist, field investigator and forensic criminologist. The defendant does not contest any of the evidence presented against her, nor was any showing made at the hearing held on the motion as to what benefits could be gained by granting her funds for the hiring of such experts.
We recently held in Sabel v. State, 248 Ga. 10(6), 282 S.E.2d 61 (1981), that: "A criminal defendant on trial for his liberty is entitled on motion timely made to have an expert of his choosing, bound by appropriate safeguards imposed by the court, examine critical evidence whose nature is subject to varying expert opinion." The defendant in this case made no contention that any critical evidence was subject to varying 5. Enumeration of error 9 complains of the admission in evidence of a letter written by defendant. The letter introduced at the guilt-innocence phase of the trial was written to the chief jailer. The letter was not solicited, nor was it the result of any interrogation, and sought to relieve her husband of any blame for the murder and rape of the victim by stating that she had coerced him into participating in the crimes. The trial court did not err in admitting this letter. Stevens v. State, 247 Ga. 698(7), 278 S.E.2d 398 (1981).
opinion, but in answer to the trial court's inquiry as to what further test he wanted stated: "At this point in time, no, there is not. If there is one, we will let the court know before the week expires." We cannot say, based upon this record, that the trial court abused its discretion in denying the motion for funds for expert witnesses. Messer v. State, 247 Ga. 316(1), 276 S.E.2d 15 (1981)
6. Enumerations of error 11 and 12 contend the trial court erred in admitting testimony of a conversation with defendant's husband in her presence, and the charge of the court on conspiracy.
The testimony objected to occurred on the night of the crime when the witness, the defendant and her husband were riding around and he testified as follows: This testimony had a direct bearing on the contended conspiracy between defendant and her husband. The statements made by the co-defendant in the presence of appellant were admissible. See Sprouse v. State, 242 Ga. 831(2), 252 S.E.2d 173 (1979), and cits. There was no error in admitting this testimony, or in the charge concerning conspiracy.
7. Enumeration of error 1 contends the trial court erred in allowing the testimony of Dr. Henry Adams at the sentencing phase of her trial. The defendant argues that the only way an expert witness may give his opinion is in response to hypothetical questions based upon facts in evidence.
It has long been the rule in this state that an expert witness may give his opinion as long as he states the facts on which he bases his conclusion. The fact that an expert's opinion may be based in part on facts not in evidence goes to the weight and credibility, not to its admissibility. Redfield v. State, 240 Ga. 460(1), 241 S.E.2d 217 (1978) and cases cited. There is no merit in this enumeration of error.
8. Enumeration of error 10 complains of a letter introduced at the sentencing phase. The letter was written by defendant to her husband while both were in jail awaiting trial. The letter was given to a guard for delivery. Under rules of the jail imposed by the sheriff, all communications between prisoners were to be read and anything out of the ordinary reported to the sheriff. The letter contained an incriminating statement and the note also contained a statement indicating knowledge that notes passed between them were read by the guards.
The defendant objected to the...
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