Cape v. State

• Decision Date: 26 January 1981
• Docket Number: No. 36298,36298
• Citation: 246 Ga. 520,272 S.E.2d 487
• Parties: CAPE v. THE STATE.
• Court: Georgia Supreme Court

Page 487

272 S.E.2d 487

246 Ga. 520

CAPE v. THE STATE.

No. 36298.

Supreme Court of Georgia.

Argued July 7, 1980.

Decided Oct. 8, 1980.

Certiorari Denied Jan. 26, 1981.

See 101 S.Ct. 956.

Floyd W. Keeble, Jr., Royston, for appellant.

J. Cleve Miller, Dist. Atty., Lindsay A. Tise, Jr., Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Mary Beth Westmoreland, Staff Asst. Atty. Gen., for appellee.

NICHOLS, Justice.

Garnett Cape, the appellant, was convicted and sentenced to death by a jury in Franklin County Superior Court for the May 17, 1979, murder of Karen Dove. His case is now before this court on direct appeal and for mandatory review of the death sentence.

I. Summary of the Evidence

From the evidence presented at trial, the jury was authorized to find the following facts:

The appellant, a 56-year-old male, was the uncle of the victim's mother. He was well acquainted with the victim's family. The victim's father and the appellant had hunted and fished together often. He had socialized with the victim's family on many occasions, and had worked with the victim's brother. He had developed a close relationship with all the members of the family, including the victim, a 15 year old high school student.

Approximately three months prior to the murder, the appellant had been told by the victim's mother to stay away from the victim. The mother testified that the appellant "seemed a little too interested in her." The victim was also told to stay away from the appellant. In response, the appellant ceased visiting the family but continued to see the victim's father and brother at their places of employment.

The appellant had promised to buy the victim an expensive car. They had looked at the car together. On the 14th of May the appellant had signed a purchase order. He had asked for a delay in delivery in order to get funds from a Texas bank. It was later established at trial that the appellant did not have such an account.

On the morning of the murder, the appellant drove the victim and her friend, Tammy Lee Dickerson, to school. He talked to the victim alone in the car for a few minutes after her friend went into the school. The victim was last seen alive leaving school at approximately 3:15 p. m.

At approximately 4:45 p. m., the appellant came into the victim's brother's place of employment and told him he had "lost" his sister. The victim's brother noticed that appellant was frightened, nervous, and had cuts on his hands and scratches on his face.

The appellant explained that he had picked up the victim after school, and had taken her to the courthouse to get her birth certificate, which was required to enable her to obtain a learner's driving permit. He testified that she went into the courthouse but didn't come out, and although he had looked for her, she was missing.

The victim's brother then began to search for his sister. The appellant had the victim's brother drive him to see a classmate of the victim. Appellant asked her whether the victim was in a good mood that day. Thereafter, the appellant went to the victim's father and, in tears, told him the same story. In response, the victim's father told the appellant that, "You knowed you wasn't suppose to pick her up," and the appellant replied, "Yeah, I'll never bother her again, I'll never buy her nothing else."

It was established that the victim's mother had gotten the victim a birth certificate and learner's permit the day prior to the murder.

The victim's brother accompanied by Tammy Lee Dickerson and another young female continued to search for the victim. He had gone to the appellant's house, but finding no one home had not entered. Later, the victim's brother and his companions returned to the appellant's house. He found a note on the back door which read, "Gone to Anderson. Garnett." The victim's brother then broke into the house through the front door. He found the front room and kitchen in an unusually neat and clean condition.

The victim's friend, Tammy Lee Dickerson, found the victim's body upon entering a bedroom. The victim had been beaten and stabbed to death. Her clothes were in disarray, so that she was partially nude. The body had been wrapped in a sheet of black plastic in such a manner that only the upper torso was exposed.

The local authorities were immediately notified. Close examination of the crime scene revealed bloodstains on the kitchen cabinets, door and ceiling. Attempts had been made to remove them. A mop, towels and male clothing were found with bloodstains on them. The defendant's watch, with bloodstains on the band, was also found. The bloodstains were of the same international blood type as that of the victim. A metal pipe belonging to the appellant was recovered and subsequently determined to be the weapon used to beat the victim.

The appellant was arrested that night as he drove through Hartwell, Georgia. The officers found a loaded pistol under the seat of appellant's car and the appellant later made the statement that "if he'd of known that the Hartwell Police would-had've done a good job of it and shot him, that he would've pulled his pistol up."

The appellant testified in his defense. He repeated the statement he told the victim's brother and father. He further testified that he later returned home and found the victim lying face down and fully clothed in his kitchen; that he tried to wipe the blood from her face but became sick; that although he did not know if the victim was dead or alive he did not call anyone but instead left to go to his sister's house in Hartwell, Georgia, to tell her.

The evidence will be examined in more detail as necessary in addressing appellant's enumerations of error.

II. Enumerations of Error

1. Appellant first asserts that the trial court erred in admitting eight photographs of the victim's body. He argues that these photographs were cumulative of testimony of other witnesses, and were unnecessarily prejudicial and inflammatory. This court does not agree. Each depicted the nature, extent and location of the wounds, the extent of the disarray of the victim's clothing, or were illustrative of the crime scene. It is well settled that photographs which are relevant and material to issues in the case are not excludable on the grounds that they would inflame the minds of the jurors, nor are they excludable on the ground that they are corroborative or cumulative of other evidence. Tucker v. State, 245 Ga. 68, 263 S.E.2d 109; Mooney v. State, 243 Ga. 373, 254 S.E.2d 337 (1979); Green v. State, 242 Ga. 261, 249 S.E.2d 1 (1978), rev. other grounds 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979).

2. After appellant was arrested and given his Miranda warnings, the authorities asked him if he wanted to make any statements. He replied to the effect that he'd rather not; that he'd rather talk to the Sheriff when he got to the jail. The trial court admitted this testimony. Appellant argues that the testimony complained of was an impermissible comment on his right to remain silent and therefore ran afoul of the rule in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Pretermitting the question of whether or not defense counsel preserved the point by proper objection during the trial, this court holds there is no merit in appellant's contention that the testimony denied him his right to remain silent.

The district attorney did not stress appellant's silence in an attempt to infer guilt, nor was the jury ever told that the appellant's silence could be used for impeachment purposes, much less as evidence of guilt. The testimony was elicited by the state upon direct examination and was not used for impeachment purposes, as was the case in Doyle v. Ohio, supra.

The comment of the witness was not directed to any particular statement or defense offered by the appellant. The election not to make a statement, but to wait and talk to the sheriff, was made after the incriminating statement about appellant's having considered whether to allow the police to shoot him. Furthermore, the comment on temporarily remaining silent was made during a narrative on the part of the authorities of a course of events. The remark apparently was not intended to, nor did it have the effect of, being probative on the guilt or innocence of the defendant. See Smith v. State, 140 Ga.App. 385, 231 S.W.2d 83 (1976). To reverse a conviction, the evidence of the defendant's election to remain silent must point directly at the substance of the defendant's defense or otherwise substantially prejudice the defendant in the eyes of the jury. No such situation exists here. Smith v. State, 244 Ga. 814, 262 S.E.2d 116, (1979). Compare Clark v. State, 237 Ga. 901, 230 S.E.2d 277, (1976). Furthermore, appellant's exculpatory story was "transparently frivolous" and the evidence of guilt is overwhelming. Chapman v. United States, 547 F.2d 1240 (5th Cir. 1977).

3. In his third enumeration of error, the appellant asserts that the trial court erred in allowing the sheriff, who had been listed as the prosecutor, to testify after the rule of sequestration had been invoked. Appellant argues that the sheriff should have been called as the state's first witness, although no objection was made at the time the rule was invoked as to sequence of witnesses. Upon assertion by the district attorney that the witness needed to be called at that time in order to preserve the orderly presentation of the evidence, the trial court specifically exercised its discretion and allowed the witness to testify. This enumeration of error is without merit. Fouts v. State, 240 Ga. 39, 239 S.E.2d 366, (1977); Larkins v. State, 230 Ga. 418, 197 S.E.2d 367, (1973); see O'Dillon v. State, 245 Ga. 342, 265 S.E.2d 18 (1980).

4. As part of his defense during the guilt-innocence phase of the trial, appellant introduced evidence of good character. The trial court upon its own motion held defense counsel to the proper questions. Appellant...