Campbell v. State

Citation240 Ga. 352,240 S.E.2d 828
Decision Date28 November 1977
Docket NumberNo. 32500,32500
PartiesWilliam (Bill) CAMPBELL v. The STATE.
CourtSupreme Court of Georgia

Rodger E. Davison, Floyd W. Keeble, Jr., Royston, for appellant.

William Bryant Huff, Clete D. Johnson, Dist. Attys., Royston, K. Dawson Jackson, Asst. Dist. Atty., Lawrenceville, Arthur K. Bolton, Atty. Gen., Daryl A. Robinson, Staff Asst. Atty. Gen., Atlanta, for appellee.

MARSHALL, Justice.

The appellant was convicted of armed robbery and murder in the Madison Superior Court. He received a life imprisonment sentence for the armed robbery conviction and a death sentence for the murder conviction. His case is here on direct appeal and for mandatory review of the death sentence imposed.

I. Summary of the Evidence.

On December 5, 1975, Mr. C. E. Eberhart, age 74, was slain in his barbershop in Colbert, Georgia. The violent and brutal nature of the struggle which ended in his death was evidenced by "blood smeared all over the whole barbershop and everything in the barbershop . . ." A blood-stained claw hammer was also found in a truck located a few feet from the building in which the barbershop was housed.

The appellant was seen loitering in the vicinity of the barbershop at approximately 5:00 p. m. Approximately one-half hour later, the appellant was seen walking toward the barbershop.

The victim's blood was found to be type O and the appellant's was type A. Traces of type A blood were found splattered on the hammer and both inside and outside the barbershop.

The appellant was subsequently arrested in Virginia. At the time of his arrest he had a deep cut on the top of his head. He was wearing a watch with a black plastic band identified at trial by the victim's daughter as the band she had earlier given to her father. She identified a watch found in the appellant's residence in Madison, Georgia, as the watch she had given her father. Blood stains were found on the watch. Also taken in the robbery was $300 in cash.

After being advised of his constitutional rights, the appellant gave a statement to police before being returned to Georgia. In that statement, he admitted going from Madison to Colbert with Henry Drake (co-defendant) and Mary Carruth on the day of the crime. He also admitted going to Mr. Eberhart's barbershop. However, he stated that he left the barbershop and went to the laundromat where his two companions picked him up. The appellant maintained that Henry Drake was "wearing a light colored watch with a dark colored band." The appellant asked Drake where he got the watch and Drake responded that he had bought it.

The appellant gave another statement to police which alleged that as he was getting into Henry Drake's car in front of the barbershop, he picked up a hammer with blood on it and threw it down. The appellant gave another statement en route from Virginia to Georgia that, "You know when a fellow gets to drinking . . . I didn't mean to do it."

Mary Carruth testified at trial that the appellant had stated to her after they left Colbert on the day of the crime that he thought he had killed a man.

The appellant gave testimony at trial incorporating aspects of each of his prior statements to police. He testified that he and Henry Drake had been drinking on the trip to Colbert. In Colbert, he went to the laundromat, then to the barbershop. He was joined in the barbershop by Drake, who hit the barber over the head with a hammer. Drake then hit him (the appellant) over the head with the hammer and knocked him out. When he regained consciousness, he was propped up in front of the entrance to the barbershop. Drake drove the car around and instructed the appellant to get in. The appellant got into the car, picked up the hammer lying inside, and threw it out.

The victim remained in a comatose state from the date of the attack until approximately 3 1/2 months later, when he died. He had received a stab wound in his chest and multiple lacerations to his scalp, causing severe swelling to his face and head.

II. Enumerations of Error.
1. The appellant's first enumeration of error contends that the trial judge erred in overruling his motion for new trial on the general grounds.

After the jury has returned a verdict of guilty, and the defendant seeks a reversal of his conviction on appeal by arguing that the trial judge erred in denying his motion for new trial on the general grounds, the only question presenting itself to the appellate court is whether there is any evidence to support the verdict. See Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975). See also Ridley v. State, 236 Ga. 147, 223 S.E.2d 131 (1976).

The appellant specifically argues that his conviction was obtained on purely circumstantial evidence except for the testimony of a witness (Mary Carruth) who was successfully impeached. This argument overlooks the appellant's pre-trial statements, including a confession, which were admitted in evidence. A confession is direct evidence. See Ramsey v. State, 212 Ga. 381(2), 92 S.E.2d 866 (1956).

In any event, the jury was accurately instructed on the law of circumstantial evidence under Code § 38-109. By its verdict, the jury has found that the evidence at trial excluded every other reasonable hypothesis save that of guilt. From the evidence at trial, there appeared no hypothesis other than guilt which this court could hold reasonable as a matter of law. See Harris v. State, 236 Ga. 242(1), 223 S.E.2d 643 (1976).

The evidence at trial was sufficient to support the verdicts. This enumeration of error on the general grounds is consequently without merit.

2. The second enumeration of error contends that the trial judge erred in overruling the appellant's plea in abatement challenging the composition of the grand jury which indicted him.

Although the appellant alleged in his plea that certain classes of people had been systematically excluded from the grand jury list, he presented no evidence in support of this allegation. Since it is clear that the defendant has the burden of establishing a prima facie case of jury discrimination (see, e. g., Pass v. Caldwell, 231 Ga. 192, 200 S.E.2d 720 (1973) and Payne v. State, 233 Ga. 294, 210 S.E.2d 775 (1974)), the trial judge did not err in overruling the plea.

3. The third enumeration of error contends that the trial judge erred in overruling the appellant's special plea of insanity. The appellant also argues in his seventh enumeration of error that he was entitled to the appointment of an expert to examine him in order to determine his mental capacity.

By agreement of the parties, the hearing on the special plea of insanity was conducted before the judge sitting without a jury. The appellant presented no evidence at the hearing to support his contention that he was insane at that time or incompetent to stand trial. The trial judge did not, therefore, err in overruling his special plea. See Williams v. State, 238 Ga. 298(3), 232 S.E.2d 535 (1977). Nor did the trial judge abuse his discretion in denying the appellant's motion for appointment of an expert medical witness. See Taylor v. State, 229 Ga. 536(1), 192 S.E.2d 249 (1972) and cits. See also Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977). Enumeration of error 3 is without merit.

4. The fourth enumeration of error contends that the trial judge erred in denying the appellant's motion for a continuance to allow further time for trial preparation.

Considering both the length of time prior to trial that the appellant's trial counsel had been appointed to represent him, as well as the amount of time in which counsel had an opportunity to consult with the appellant, we cannot say that the court's denial of the motion for a continuance was an abuse of discretion. Code § 81-1419. See, e. g., Marshall v. State, 239 Ga. 101, 236 S.E.2d 58 (1977); Fleming v. State, 236 Ga. 434, 224 S.E.2d 15 (1976). Enumeration of error 4 is without merit.

5. The fifth enumeration of error contends that the trial judge erred in failing to sustain the appellant's challenge to the array of the traverse jury. At trial the only evidence adduced by the appellant in support of his jury challenge was the disparity between the number of men and women on the traverse jury panel in this case.

There is no constitutional guarantee that the grand or petit juries, impanelled in a particular case will constitute a representative cross-section of the entire community. "A defendant is not constitutionally entitled to a venire or jury roll of any particular composition . . . Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) . . . (Cits.)" Sanders v. State, 235 Ga. 425, 429, 219 S.E.2d 768, 772 (1975). What the Constitution does require is "that the state not deliberately and systematically exclude identifiable and distinct groups from their jury lists." Sanders, supra, at 429, 219 S.E.2d at 772.

To establish a prima facie case of jury discrimination the complainant must show "that an opportunity for discrimination existed from the source of the jury list and that use of the infected source produced a significant disparity between the percentages found present in the source and those actually appearing on the grand and traverse jury panels." Fouts v. State, 240 Ga. 39, 239 S.E.2d 366, 368 (Decided October 25, 1977).

The appellant failed to make out a prima facie case of jury discrimination. Therefore, the trial court did not err in refusing to sustain the challenge.

6. The sixth enumeration of error contends that the trial judge erred in refusing to sustain the appellant's motion for a change of venue due to prejudicial pre-trial publicity.

None of the jurors testified on voir dire that they had formed fixed opinions as to the guilt or innocence of the accused from pre-trial publicity. Furthermore, of the seven newspaper clippings introduced by the appellant in support of his motion, six were published eight months before trial and...

To continue reading

Request your trial
37 cases
  • Ruffin v. State, 33865
    • United States
    • Supreme Court of Georgia
    • February 14, 1979
    ...case we have held it is not error under the circumstances here. Hawes v. State, 240 Ga. 327, 240 S.E.2d 833 (1977); Campbell v. State, 240 Ga. 352, 240 S.E.2d 828 (1977); Presnell v. State, 241 Ga. 49, 62, 243 S.E.2d 496 (1978); Drake v. State, 241 Ga. 583, 587, 247 S.E.2d 57 Matters such a......
  • Godfrey v. Georgia
    • United States
    • United States Supreme Court
    • May 19, 1980
    ...court's view, "torture" may be present whenever the victim suffered pain or anticipated the prospect of death. See Campbell v. State, 240 Ga. 352, 240 S.E.2d 828 (1977), cert. denied, 439 U.S. 882, 99 S.Ct. 218, 58 L.Ed.2d 194 (1978); Blake v. State, 239 Ga. 292, 236 S.E.2d 637, cert. denie......
  • Godfrey v. State, 34256
    • United States
    • Supreme Court of Georgia
    • March 27, 1979
    ...to support it the verdict will not be disturbed on appeal. Drake v. State, 241 Ga. 583, 585, 247 S.E.2d 57 (1978); Campbell v. State, 240 Ga. 352, 354, 240 S.E.2d 828 (1977). There was abundant evidence admitted at trial to support these Appellant's contention that the evidence as to his sa......
  • Alderman v. State
    • United States
    • Supreme Court of Georgia
    • July 6, 1978
    ...a waiver, and appellant cannot now complain on appeal. Reeves v. State, 241 Ga. 44, 243 S.E.2d 24 (1978); Campbell v. State, 240 Ga. 352(8), 240 S.E.2d 828 (1977); Sheffield v. State, 235 Ga. 507, 220 S.E.2d 265 (1975). Accord, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed. 594 N......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT