Crawford v. State
| Decision Date | 31 May 1985 |
| Docket Number | No. 41766,41766 |
| Citation | 330 S.E.2d 567,254 Ga. 435 |
| Parties | CRAWFORD v. The STATE. |
| Court | Georgia Supreme Court |
John B. Mostiler, Griffin, Tamara Jacobs, Barnesville, for Eddie Albert Crawford.
Johnny L. Caldwell, Jr., Dist. Atty., Thomaston, J. David Fowler, Christopher C. Edwards, Asst. Dist. Attys., Michael J. Bowers, Atty. Gen., Atlanta, Eddie Snelling, Jr., Sr. Atty., for the State.
Eddie Albert Crawford was convicted of the murder of his 29-month-old niece, Leslie Michelle English, and sentenced to death. The case is before this court on direct appeal, for review under the Unified Appeal Procedure, 252 Ga. A-13, et seq., and for review of the death sentence. 1
The evidence at trial showed that the victim and the victim's mother, Wanda English, resided with Mrs. English's parents. The defendant was married to, but estranged from, one of Mrs. English's sisters at the time of the victim's death. At approximately 11:00 p.m. Saturday, September 24, 1983, Mrs. English readied the victim for bed. The defendant arrived at the victim's residence and asked Mrs. English to accompany him to a liquor store. Mrs. English agreed. The defendant was intoxicated and, enroute from the liquor store, made an unsuccessful attempt to purchase marijuana. The two returned to Mrs. English's residence where the defendant asked Mrs. English to spend the night with him. When she refused, the defendant left.
Mrs. English encountered the defendant later that same night at the house of another of her sisters. During this visit the defendant kicked an ashtray off a table which struck Mrs. English. As Mrs. English picked up the ashtray's contents, the defendant "grabbed her and pushed her." Mrs. English yelled that she would not allow him to treat her like that, then threw the ashtray at him. As Mrs. English left her sister's home, the defendant swore and called to her, "I'll fix you."
During this time the victim was in the care of Mrs. English's father, Raymond Fuller. Mr. Fuller testified that before he went to bed at 3:00 a.m., he observed the victim sleeping and pulled the bedclothes about her. Mr. Fuller testified he returned to his own bed and fell asleep. He stated that "sometime later" he was awakened by the defendant walking through the house with a lighted cigarette lighter. Mr. Fuller saw the defendant walking through the victim's bedroom in the direction of the bathroom. As the defendant was a family member and frequent guest in his home, Mr. Fuller did not consider this unusual. Mr. Fuller testified he again fell asleep and did not wake up until 5:00 a.m. when Wanda English returned home and discovered the victim missing.
Charles Durham, who lives in a house adjacent to the Fullers, testified that between 3:45 a.m. and 4:00 a.m., he observed the defendant drive up to the Fuller home and exit his car, leaving the car headlights on and the motor running. Mr. Durham testified that "about five minutes later" he noticed the defendant's car drive away.
When Wanda English could not locate the victim upon her return home at 5:00 a.m., she initiated a search throughout the neighborhood. She observed the defendant in his car, parked with the motor running, in front of a neighboring house, and asked if he had seen the victim. The defendant replied that he had not. Later, when the victim's grandfather asked the defendant if he knew where the victim could be found, the defendant replied "Randy [the victim's father] done it."
In the following days the defendant gave three inconsistent stories concerning where he had been between the hours of 3:00 a.m. and 5:00 a.m. on September 25. 2 When interviewed by law enforcement officers on September 27, 1983, the defendant stated that he could remember speaking to the victim's grandfather before the victim's disappearance, but he remembered nothing more of what took place at the Fuller residence. The defendant told police that he remembered driving his car, with the victim in his lap, and trying to wake up the victim, "but she would not talk to [him.]" The defendant stated he believed the victim was "mad" because she would not respond to him. The defendant stated he stopped his car and walked "on pavement" with the victim in his arms. The defendant stated he remembered getting back into his car without the victim, but did not remember anything that had occurred in the interim.
The victim's body, clothed only in a pajama top, was discovered in a wooded area on September 26, 1983. An autopsy revealed the victim died as a result of asphyxiation. The victim had sustained a number of bruises and cuts about the left side of her face. There was a tear in the victim's vaginal opening. Based on the size and shape of the tear, the pathologist who performed the autopsy opined that it had been made by "an object more consistent with a penis than other objects." The pathologist stated his opinion that death occurred at approximately 4:30 a.m. on September 25, 1983.
The forensic evidence indicated that several head and pubic hairs consistent with those of the defendant were found on the victim's body. Carpet fibers found on the victim's body were consistent with the fibers of the carpet in the defendant's car.
1. The single count indictment charged that the defendant "did unlawfully and with malice aforethought, cause the death of Leslie Michelle English, a human
being, by suffocation." The trial court charged the jury on the law of malice murder, and also charged the jury on the law of felony murder, the underlying felony being child molestation, OCGA § 16-6-4. 3 The jury returned a verdict of "guilty," without specifying whether it had found the defendant guilty of malice murder or felony murder.
The defendant argues that he may not be convicted of felony murder as the indictment did not put him on notice of this charge. We agree. "It is axiomatic that a conviction upon a charge not made ... constitutes a denial of due process." Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979). "[A] defendant indicted only for malice murder cannot be convicted of felony murder unless the defendant has been put on notice of the felony by the facts alleged to show how the murder was committed." McCrary v. State, 252 Ga. 521, 314 S.E.2d 662 (1984). The underlying felony charged by the trial court was child molestation. No facts are alleged in the indictment which would put the defendant on notice that he would be required to defend against this charge at trial. 4 Because of this due process violation the conviction must be set aside.
The ambiguous verdict makes it impossible for us to determine if the jury found the defendant guilty of malice murder or felony murder. 5 Although a construction of the verdict as being a conviction for malice murder would avoid the due process violation associated with felony murder, we acknowledge the well-settled rule that if a case has been submitted to the jury on several alternative theories, one of which is unconstitutional, a general verdict of guilty which does not indicate it was based upon one of the constitutional theories must be set aside. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931) 6; Sandstrom v. Montana, 442 U.S. 510, 526, 99 S.Ct. 2450, 2460, 61 L.Ed.2d 39 (1979); Leary v. United States, 395 U.S. 6, 31-2, 89 S.Ct. 1532, 1545-6, 23 L.Ed.2d 57 (1969); Ulster County v. Allen, 442 U.S. 140, 159-60 fn. 17, 99 S.Ct. 2213, 2226 n. 17, 60 L.Ed.2d 777 (1979); Bachellar v. Maryland, 397 U.S. 564, 570-1, 90 S.Ct. 1312, 1315-6, 25 L.Ed.2d 570 (1970). Therefore, we must reverse.
2. We have, however, examined the evidence supporting a conviction of either malice murder or felony murder, and conclude that a rational trier of fact could find beyond a reasonable doubt that the defendant committed either malice murder or felony murder. OCGA § 16-5-1. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Since the evidence is sufficient to support a conviction of either malice murder or felony murder, the State may reindict the defendant for either malice murder or felony murder or both. McCrary v. State, supra, 252 Ga. at 525, 314 S.E.2d 662.
3. We need not reach the issues of whether the grand jury and traverse jury in this case were constitutionally composed of representative cross sections of the community. If the State elects to reindict and retry this case, and again seeks the death penalty, the trial court will be guided by the Unified Appeal Procedure, Rules II(A)(6) and II(C), in determining whether the grand and traverse juries are properly composed.
4. Prior to trial the defendant made a motion for state funds to obtain an independent psychological evaluation. The defendant also moved the trial court to rule that any information obtained in this evaluation would be protected under the attorney client privilege and work product doctrine. The trial court granted the motion for funds, but as to the request that the evaluation be declared privileged, the trial judge stated he was [Emphasis supplied.]
The defendant maintains that the court's failure to rule on the matter at that time denied him due process of law by forcing him to "tap family sources for funding of a psychological evaluation." We need not reach the merits of the issue because we find the defendant abandoned that portion of his motion requesting that the evaluation be privileged. After the trial court stated it was unfamiliar with the law and would reserve ruling, the defendant declined to pursue the matter. He offered no authority to the trial court in support of his motion, and failed to evoke a ruling of law from the court. Instead he opted to obtain a psychological evaluation using private funds. Under these...
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