Catchings v. State

• Decision Date: 03 September 1986
• Docket Number: No. 43401,43401
• Parties: CATCHINGS v. The STATE.
• Court: Georgia Supreme Court

Page 572

347 S.E.2d 572

256 Ga. 241

CATCHINGS v. The STATE.

No. 43401.

Supreme Court of Georgia.

Sept. 3, 1986.

Jimmy D. Berry, Marietta, for Don Michael Catchings.

Thomas J. Charron, Dist. Atty., Marietta, Nancy I. Jordan, Asst. Dist. Atty., Michael J. Bowers, Atty. Gen., Eddie Snelling, Jr., Asst. Atty. Gen., for the State.

MARSHALL, Chief Justice.

Appellant, Don Michael Catchings, was convicted of the murder of Belinda Wood and arson in the first degree in connection with the burning of the Tahoe Vining Apartments in Cobb County. The state sought the death penalty on grounds that: (1) The offense of murder was committed while the offender was engaged in the commission of a burglary, OCGA § 17-10-30(b)(2); and (2) the offense of murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind. OCGA § 17-10-30-(b)(7). The jury found the appellant guilty of arson in the first degree and of felony murder, but the jury did not recommend that the death penalty be imposed. Appellant was given a sentence of life imprisonment for the murder conviction and a consecutive sentence of 20 years' imprisonment for the arson conviction. ¹

Appellant lived in a ground-floor apartment, and the victim lived in a third-floor apartment, at the Tahoe Vining Apartments. At approximately 4:00 a.m. on March 14, 1985, neighbors heard loud screams emanating from the victim's apartment. There was testimony that footsteps were then heard descending from the victim's apartment to the lower level of the apartment building; however, no car was heard or observed exiting the parking lot. Some of the neighbors were so alarmed by the screams that they placed a telephone call to the police. The evidence showed that the victim had been stabbed in the back with a six-inch blade with such force that the blade pierced her lung and broke one of her ribs. She was also stabbed in her lower left lung, which stabbing left a gaping four-inch gash. However, she retained consciousness sufficient to place a telephone call to the police. When a police officer eventually arrived at the apartment, he found the victim lying in a pool of blood. There were blood stains throughout the apartment, and a knife was found near the victim's bed.

Appellant emerged from his apartment, stated that he was a respiratory therapist, and offered his assistance. As the investigation proceeded, he was noticed observing the events taking place. Specifically, he was seen underneath the balcony of the victim's apartment as the investigators were discussing toe prints on the track of the victim's sliding glass door, the knife found near the victim's bed, the blood stains in the apartment, and a bloody handprint found on the victim's front door. Within five minutes after this conversation took place, smoke was detected arising from beneath the victim's apartment. The flames spread so rapidly that the murder investigation had to be discontinued, and an evacuation of the apartment building was begun.

The arson investigation established that the fire had been set intentionally, and the point of origin of the fire was found to be situated at various locations in appellant's apartment.

Subsequently, appellant was taken to the police station for questioning as a suspect in the arson and murder. During questioning, he informed the police that he did not "think [he] killed nobody," but that "[i]f you have prints of mine in her apartment, that would help me remember." Cuts and abrasions were also found on appellant's body, which were consistent with injuries he could have incurred in the course of the struggle with the victim and the breaking into her apartment. Additional testimony was presented that appellant was extremely agile and that on a previous occasion he had climbed from one floor of the apartment building to an upper-level floor.

Subsequent facts will be reviewed insofar as is necessary for a more thorough illumination of the issues presented in this appeal.

1. In the first enumeration of error, appellant argues that his challenge to the array of the grand and traverse juries was improperly overruled by the trial court.

Appellant's basic argument in this regard is that, utilizing a comparative-disparity analysis, there is an unconstitutional underrepresentation of blacks and young people on the Cobb County grand and traverse jury lists. Appellant also argues that use of the voter registration list as the source for compilation of the grand and traverse jury lists results in those lists not being representative of a fair cross section of the community.

In connection with the present enumeration of error, appellant in his brief has included no citations to the record. In any event, from our review of the record, we find that the evidence presented, and the jury lists challenged, are essentially the same as those in Ingram v. State, 253 Ga. 622(ld), 323 S.E.2d 801 (1984) and Cook v. State, 255 Ga. 565(11), 340 S.E.2d 843 (1986). Under the holdings in these cases, the trial court did not err in overruling appellant's jury challenges here.

2. In the second enumeration of error, appellant argues that Georgia's statutory death-penalty provisions are unconstitutional in that they allow the death penalty to be imposed in an arbitrary and capricious manner. Appellant also argues that imposition of the death penalty by electrocution constitutes cruel and unusual punishment.

Since appellant did not receive the death penalty, he lacks standing to launch these attacks. See State v. Raybon, 242 Ga. 858, 252 S.E.2d 417 (1979) and cits. Moreover, Georgia's death-penalty statutory scheme has withstood constitutional scrutiny as against the arguments advanced by appellant. Felker v. State, 252 Ga. 351(14), 314 S.E.2d 621 (1984).

3. In the third enumeration of error, appellant argues that the "death qualification" of jurors under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) at the guilt/innocence phase of a death-penalty trial results in a violation of the defendant's right to an impartial jury and to a jury drawn from a representative cross-section of the community.

This argument has been held to be without merit in the recent decision of the United States Supreme Court in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986).

4. In the fourth enumeration of error, appellant argues that the trial court erred in denying his motion to sever the murder charge from the arson charge.

"To avoid multiplicity of prosecutions, a prosecutor is required by law to prosecute in a single prosecution all known crimes arising from the same conduct within the jurisdiction of a single court, subject to the right to severance by the court in the interest of justice." Jarrell v. State, 234 Ga. 410, 412(1), 216 S.E.2d 258 (1975), citing Code Ann. § 26-506 (OCGA § 16-1-7). Under the "interest of justice" criterion, the trial judge is vested with discretion in deciding whether to grant a severance. Jarrell v. State, supra. Where, as here, the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying the motion for severance. Id.

5. In the fifth enumeration of error, appellant argues, for a compendium of reasons, that the trial court erred in denying his motion to dismiss the indictment.

For reasons which follow, we find these arguments to be without merit. See generally Ga.Crim.Trial Prac. (1984 ed.), § 13-1 et seq.

(a) First, appellant argues that the indictment failed to sufficiently state the time and place of the commission of the alleged offenses.

We disagree.

Count 1 of the indictment alleged that the murder occurred on March 14, 1985, in Cobb County. Count 2 alleged that the arson took place at "2606 Paces Place, the property of Balcor Equity Properties XIV, Inc., d/b/a Tahoe Vinings Apartments and the dwelling house of the tenants therein, to wit [named individuals]."

(b) Second, appellant argues that no overt acts were alleged.

Again, we disagree.

Count 1 of the indictment alleged that the accused did unlawfully and with malice aforethought cause the death of the victim by stabbing her with a knife. Count 2 alleged that the accused did "by means of a fire, knowingly damage [the] building ..."

(c) Appellant also argues that the indictment was vague and ambiguous, that it did not sufficiently apprise him of the charges against him so as to permit adequate preparation of a defense, that under the wording of the indictment a subsequent prosecution for the named offenses would not have been barred, and that the indictment did not state facts "sufficient to constitute a claim [sic] under the laws of the State of Georgia." For the reasons previously given, these arguments are without merit.

(d) Finally, appellant contends that the indictment was defective, because it failed to show on its face when it was returned.

The record belies this assertion. Here, the indictment shows on its face that it was entered on the minutes of the Cobb Superior Court on May 2, 1985.

6. In the sixth enumeration of error, appellant argues that the trial court erred in charging the jury on the principle of felony murder as a basis for imposition of felony murder conviction. Appellant's argument in this regard is that the charge on felony murder was not supported by the evidence in this case. We disagree.

Here, the indictment charged, and the evidence showed, that appellant killed the victim by stabbing her with a knife. Thus, the trial court was authorized in charging the jury on the principle of felony murder the felony being aggravated assault. See OCGA § 16-5-21; Fair v. State, 172 Ga.App. 49(3), 321 S.E.2d 790 (1984).

Invoking what is commonly referred to as the merger problem, appellant also maintains that the felony-murder doctrine should not apply where, as here, the underlying felony is an aggravated assault which is...