Cofield v. State
| Decision Date | 10 February 1981 |
| Docket Number | No. 36742,36742 |
| Citation | 274 S.E.2d 530,247 Ga. 98 |
| Parties | Fabien K. COFIELD v. STATE. |
| Court | Georgia Supreme Court |
Tony L. Axam, Ransom & Axam, Atlanta, for Fabien K. Cofield.
Randall Peek, Dist. Atty., J. Peters, Asst. Dist. Atty., Decatur, Arthur K. Bolton, Atty. Gen., for the State.
This is a death penalty case.
Fabien K. Cofield was indicted by the DeKalb County grand jury for the malice murder and armed robbery of Howard Allen Bais. A jury found him guilty on both counts and sentenced him to life imprisonment for the armed robbery and death for the murder.
A witness for the state, Arnold Debran, testified that he found the victim lying on his back on the floor of a Majik Market store at approximately 7:15 a. m., on January 27, 1979. The victim's face was blue. Debran asked "Can I help you, sir?"; upon getting no response he returned to his car to go find help. He attracted the attention of Charles Priest, a Colonial Baking Company route salesman, who returned to the store with him. Priest called the police. Apparently neither Priest nor Debran realized that Bais had been shot. Eddie Morris entered the store only moments after Priest and Debran had returned. According to Priest, before Morris reached a position from which he could have seen the victim's body on the floor, he asked "Is he dead, is he dead?" Debran recalled Morris saying " 'Howard is dead', or something like that," but Debran was not certain whether Morris could have seen the body before making that statement.
Priest testified that the victim, who managed the Majik Market, had let him in at 6:55 a. m. so that he could check the bread racks before the store opened at 7:00 a. m. While he was in the store, two customers entered and left. A third customer entered as Priest was leaving at approximately 7:10 a. m. Priest proceeded to another convenience store some 150 yards down the street. While standing outside he thought he heard a gunshot which he assumed was a car backfiring. Almost immediately after he heard the shot he heard the squeal of car tires, and glimpsed an automobile running a red light. He proceeded to a nearby grocery store but it was closed and he left. At that point he was flagged down by Debran.
Another witness testified that when he entered the store at approximately 7:10 a. m., he saw Mr. Priest leaving. He purchased something from Bais and left for work.
The police described the cause of death to the DeKalb County medical examiner, Dr. Joseph Burton, as a "probable heart attack". In performing the autopsy, Dr. Burton ascertained that death was caused by a small caliber bullet which had entered through the victim's back, passed through his liver and diaphram, and lodged in his heart. The small amount of bleeding which did occur was not discovered by the investigating officers because the victim was wearing a T-shirt, an outer shirt, and a dark blue jogging sweater or jacket.
Bais' supervisor testified that he was called at approximately 7:30 a. m. and was told Howard Bais had suffered a heart attack. He went directly to the store, arriving at 7:45 or 7:50 a. m. The safe was open but no money was missing from it. Upon checking the cash register he determined the store was short $104.00.
Shortly after midnight on February 6, 1979, a Bartow County deputy sheriff arrested the defendant in connection with an armed robbery in Bartow County. 1 Upon searching the defendant, the police discovered a .22 caliber revolver. Shortly after 1:00 a. m. a description of the weapon was placed in the statewide law enforcement teletype system. Later that day the gun was turned over to Kelly Fite of the State Crime Laboratory and Fite determined that the bullet which killed Howard Bais had been fired by this weapon.
On that same day, February 6, 1980, the defendant was turned over to the DeKalb County police. After being questioned, the defendant signed a written statement at 6:30 p. m. confessing to the murder and armed robbery of Howard Bais. In his confession, the defendant said that in the early morning hours of January 26 he broke into the house of a couple he knew and took a .22 caliber pistol; that he walked from there to the Majik Market, arriving just at daylight; that no one else was in the store; that he told the manager "Give me all your money"; that the manager opened the safe and put a handful of bills on the counter; that as he was putting the money in his pocket the manager grabbed his wrist; that he pushed the manager away and as the manager spun around, he shot him; that he grabbed the rest of the money on the counter; that after he walked across the street he saw a car pull up to the store; that he walked away; that when he counted the money it was only $8 or $9. 2
1. In defendant's first enumeration of error he complains of the trial court's having held a member of the traverse jury in contempt of court and sentenced him to jail on the first day of trial. He argues that the trial court's action so chilled the proceedings that reversal is mandated.
The episode at issue, which occurred after voir dire had consumed several hours, follows:
"
It appears from the record that only five or six potential jurors were in the courtroom at the time this incident occurred. 3 Of these, only one sat on the trial jury.
After the stricken juror was removed from the courtroom, two more members of the panel underwent individual voir dire. This consumes some 18 pages of the transcript. At that point, it being 5:30 p. m., the proceedings were recessed until 9:00 a. m. the next day. At approximately 3 p. m. the next day, the defendant objected to this juror having been stricken for cause. At this point it would not have been appropriate to resummon and reinstate the stricken juror (who was either in jail or had otherwise been separated from the other jurors) and it would have been necessary to declare a mistrial. Yet the defendant did not move for a mistrial, possibly because the 22 jurors who had tentatively been accepted at that time were satisfactory to the defendant. Although we do not approve the court's action, especially since it was taken with at least 5 members of the jury panel present, we do not find it affected or chilled the proceedings so as to require reversal, especially in the absence of a timely objection or motion for mistrial. See Daniels v. State, 230 Ga. 126(2), 195 S.E.2d 900 (1973); Driggers v. State, 244 Ga. 160(2) 259 S.E.2d 133 (1979); see also Boulware v. Texas, 542 S.W.2d 677 (Crim.App.1976), cert. den. 430 U.S. 959, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977); but see People v. Lanphear, 163 Cal.Rptr. 601, 608 P.2d 689 (Cal.1980), 448 U.S. ----, 101 S.Ct. 57, 66 L.Ed.2d 13, vac'd (1980).
2. Defendant's second and third enumerations of error are that the trial court erred in excusing a potential juror, Mr. Angel, on Witherspoon grounds, and in not allowing defense counsel to examine Mr. Angel as to his views on capital punishment. Under Witherspoon v. Illinois, 391 U.S. 510, 88 S.C. 1770, 20 L.Ed.2d 776 (1968), jurors may be excused for cause because of conscientious objection to the death penalty only if they make it "unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt." Id. at 522, n. 21, 88 S.Ct. 1777, n. 21.
Mr. Angel was stricken for cause after the following series of questions. The prosecutor asked the jurors seated in a certain row: "Are you conscientiously opposed to the death penalty?" Mr. Angel responded affirmatively. The prosecutor then asked: Mr. Angel responded "No." The prosecutor then asked: "If the jury found the defendant guilty or a defendant in any case guilty and also was required under the statute to consider the death penalty on the penalty phase, could you ever, sir, be a member of a jury that voted to impose the death penalty?" Mr. Angel responded: "No." 4 The defendant's counsel then asked: "Mr. Angel, how long have you had these opinions that you have expressed?" Mr. Angel responded: Defense counsel: "And what is the basis for that opposition?" The prosecutor interjected: "Your Honor, I think as long as he is speaking from his conscience " The Court: "I don't think he's required under the law to explain how he arrives at that conclusion." Defendant's counsel: "Mr. Angel, you understand that as a juror you are under a duty to follow the law as expressed by the Judge?" Mr. Angel: "Correct." Defendant's counsel: ...
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