Cromartie v. State

Decision Date08 March 1999
Docket NumberNo. S98P1411.,S98P1411.
Citation514 S.E.2d 205,270 Ga. 780
PartiesCROMARTIE v. The STATE.
CourtGeorgia Supreme Court

OPINION TEXT STARTS HERE

Michael Mears, Atlanta, for Ray Jefferson Cromartie.

James E. Hardy, Mark E. Mitchell, Asst. Dist. Attys., Thomasville, J. David Miller, Dist. Atty., Valdosta, Thurbert E. Baker, Atty. Gen., Christopher L. Phillips, Asst. Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State. HUNSTEIN, Justice.

Ray Jefferson Cromartie was convicted of malice murder, armed robbery, aggravated battery, aggravated assault, and four counts of possession of a firearm during the commission of a crime. The jury recommended a death sentence for the murder, finding the following statutory aggravating circumstances: the murder was committed while the defendant was engaged in the commission of an armed robbery; the murder was committed for the purpose of receiving money or any other thing of monetary value; and the murder was outrageously or wantonly vile, horrible or inhuman in that it involved depravity of mind and an aggravated battery to the victim before death. OCGA § 17-10-30(b)(2), (4), (7). The trial court sentenced Cromartie to death. He appeals and we affirm.1

1. The evidence adduced at trial shows that Cromartie borrowed a .25 caliber pistol from his cousin Gary Young on April 7, 1994. At about 10:15 p.m. on April 7, Cromartie entered the Madison Street Deli in Thomasville and shot the clerk, Dan Wilson, in the face. Cromartie left after unsuccessfully trying to open the cash register. The tape from the store video camera, while too indistinct to conclusively identify Cromartie, captured a man fitting Cromartie's general description enter the store and walk behind the counter toward the area where the clerk was washing pans. There is the sound of a shot and the man leaves after trying to open the cash register. Wilson survived despite a severed carotid artery. The following day, Cromartie asked Gary Young and Carnell Cooksey if they saw the news. He told Young that he shot the clerk at the Madison Street Deli while he was in the back washing dishes. Cromartie also asked Cooksey if he was "down with the 187," which Cooksey testified meant robbery. Cromartie stated that there was a Junior Food Store with "one clerk in the store and they didn't have no camera."

In the early morning hours of April 10, 1994, Cromartie and Corey Clark asked Thaddeus Lucas if he would drive them to the store so they could steal beer. As they were driving, Cromartie directed Lucas to bypass the closest open store and drive to the Junior Food Store. He told Lucas to park on a nearby street and wait. When Cromartie and Clark entered the store, Cromartie shot clerk Richard Slysz twice in the head. The first shot which entered below Slysz's right eye would not have caused Slysz to immediately lose consciousness before he was hit by Cromartie's second shot directed at Slysz's left temple. Although Slysz died shortly thereafter, neither wound caused an immediate death. Cromartie and Clark then tried to open the cash register but were unsuccessful. Cromartie instead grabbed two 12-packs of Budweiser beer and the men fled. A convenience store clerk across the street heard the shots and observed two men fitting the general description of Cromartie and Clark run from the store; Cromartie was carrying the beer. While the men were fleeing one of the 12-packs broke open and spilled beer cans onto the ground. A passing motorist saw the two men run from the store and appear to drop something.

Cooksey testified that when Cromartie and his accomplices returned to the Cherokee Apartments they had a muddy case of Budweiser beer and Cromartie boasted about shooting the clerk twice. Plaster casts of shoe prints in the muddy field next to the spilled cans of beer were similar to the shoes Cromartie was wearing when he was arrested three days later. Cromartie's left thumb print was found on a torn piece of Budweiser 12-pack carton near the shoe prints. The police recovered the .25 caliber pistol that Cromartie had borrowed from Gary Young, and a firearms expert determined that this gun fired the bullets that wounded Wilson and killed Slysz. Cromartie's accomplices, Lucas and Clark, testified for the State at Cromartie's trial.

The evidence adduced was sufficient to enable a rational trier of fact to find Cromartie guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence was also sufficient to authorize the jury to find the statutory aggravating circumstances which supported his death sentence for the murder. Id.; OCGA § 17-10-35(c)(2).

2. Cromartie complains that the trial court should have granted his motion for a change of venue.

A trial court must order a change of venue in a death penalty case when a defendant can make a "substantive showing of the likelihood of prejudice by reason of extensive publicity." To justify a change of venue, a defendant must show that the trial setting was inherently prejudicial as a result of pretrial publicity or show actual bias on the part of individual jurors.

(Citations omitted). Barnes v. State, 269 Ga. 345, 347-48(2), 496 S.E.2d 674 (1998). Cromartie can show neither an inherently prejudicial trial setting nor sufficient actual bias on the part of individual jurors. There were only a few articles in the local newspaper about the crimes, most of which were published when the crimes were committed, over three years before the trial. The media coverage was not extensive or inflammatory; it did not reflect an atmosphere of hostility sufficient to render the trial setting inherently prejudicial. See id. As to the individual jurors, only 28 of 105 prospective jurors stated that they had read any articles about the case, and most of these jurors indicated that they had not formed a fixed opinion as to Cromartie's guilt or any other issue at trial. Only one prospective juror was excused for cause for having a fixed opinion due to pretrial publicity. The trial court did not err by denying Cromartie's motion for a change of venue. Id.

3. The trial court did not abuse its discretion in denying Cromartie's motion to sever the offenses at the Madison Street Deli from the offenses at the Junior Food Store. Dennis v. State, 263 Ga. 257, 259-60(6), 430 S.E.2d 742 (1993). In this case, the two shootings were similar, occurred only three days apart, involved the same gun, and were part of a single scheme or plan to rob convenience-type stores.

4. There is no evidence that any cognizable group was under represented in the Thomas County grand jury pool. See Bright v. State, 265 Ga. 265, 283(12), 455 S.E.2d 37 (1995); Hicks v. State, 256 Ga. 715, 718(7), 352 S.E.2d 762 (1987).

5. The death qualification of prospective jurors is not unconstitutional. DeYoung v. State, 268 Ga. 780, 790(11), 493 S.E.2d 157 (1997); McMichen v. State, 265 Ga. 598, 611(28), 458 S.E.2d 833 (1995).

6. OCGA § 17-10-30 is not unconstitutional. McMichen, supra, 265 Ga. at 611(25), 458 S.E.2d 833.

7. The trial court did not err by excusing prospective juror Smith for cause due to her inability to consider a death sentence. "The proper standard for determining the disqualification of a prospective juror based upon his views on capital punishment `is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath."`" Greene v. State, 268 Ga. 47, 48, 485 S.E.2d 741 (1997), quoting Wainwright v. Witt, 469 U.S. 412, 424(II), 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Although she answered several questions equivocally, juror Smith also repeatedly and firmly stated that she could not vote to impose a death sentence under any circumstances. The trial court was authorized to excuse her for cause. Greene v. State, supra, 268 Ga. at 49, 485 S.E.2d 741.

8. Cromartie contends that the trial court improperly limited the scope of his voir dire on the issue of the death penalty. The scope of voir dire is left to the trial court's discretion, and the voir dire in this case was broad enough to ascertain the prospective jurors' views regarding capital punishment and the imposition of the death penalty. See Barnes v. State, supra, 269 Ga. at 351(10), 496 S.E.2d 674. We find no error.

9. Cromartie complains that the trial court erred by failing to excuse several prospective jurors for cause due to their views on capital punishment, exposure to pretrial publicity, or other alleged bias. "Whether to strike a juror for cause lies within the sound discretion of the trial court." Brown v. State, 268 Ga. 354, 356(3), 490 S.E.2d 75 (1997).

(a)Pretrial publicity. The record reveals that the prospective jurors who had been exposed to pretrial publicity but were qualified to serve either had no opinion about the case or could lay aside their opinion and render a verdict based solely on the evidence and the trial court's instructions. A prospective juror is not required to be ignorant of the facts and issues involved in a case; "[i]t is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). See also Woodbury v. State, 264 Ga. 31, 32(2), 440 S.E.2d 461 (1994). We find that no prospective jurors were erroneously qualified to serve due to their exposure to pretrial publicity. Id.; Brown, supra, 268 Ga. at 356-57(3), 490 S.E.2d 75.

(b) Death penalty. As previously stated, a prospective juror is not disqualified based upon his views on capital punishment unless "the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Greene, supra, 268 Ga. at 48, 485 S.E.2d 741, quoting Wainwri...

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