Curry v. State

• Citation: 255 Ga. 215,336 S.E.2d 762
• Decision Date: 27 November 1985
• Docket Number: No. 42101,42101
• Parties: CURRY v. The STATE.
• Court: Georgia Supreme Court

Page 762

336 S.E.2d 762

255 Ga. 215

CURRY v. The STATE.

No. 42101.

Supreme Court of Georgia.

Nov. 27, 1985.

[255 Ga. 224] Robert S. Reeves, Swainsboro, Stephanie J. Batcheller, Marcus F. Price, Jr., Louisville, for Walter William Curry.

Richard A. Malone, Dist. Atty., Swainsboro, Michael J. Bowers, Atty. Gen., J. Michael Davis, Staff Asst. Atty. Gen., Atlanta, for State.

MARSHALL, Presiding Justice.

This is a death-penalty case. On May 10, 1984, the home of Laura Will Sheram was burglarized, and she was raped and murdered. Walter William Curry was indicted for these offenses and a trial commenced on December 3, 1984. On December 5, after a jury was selected, Curry entered a plea of guilty to all three counts of the indictment. The trial continued on the issue of sentence, and on December 6, the jury recommended a death sentence. The case is here on direct appeal, for review under the Unified Appeal Procedure (252 Ga. A-13 et seq.), and for the Sentence Review required by OCGA § 17-10-35. ¹ We affirm.

Enumerations of Error.

1. In his second enumeration, Curry alleges error in the denial of his motion to suppress, citing Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

On May 15, 1984, Washington County Sheriff Jimmy Walton obtained a warrant to search Curry's residence. The warrant was supported by the following affidavit, sworn to by the sheriff:

"During the early morning hours of May 10, 1984, Mrs. Laura Sheram was found beaten to death and raped in her home on Main St. in Tennille, Ga. Officers observed that Mrs. Sheram was murdered in her bedroom. Blood was observed in numerous places on her floor, bed-sheet, bed-headboard, and on her body. Dr. Larry Howard performed an autopsy and found she had been beaten about the face and bled severely from her nose and vagina. A green canvas-type hat with Negroid-appearing hair was found within feet of a window of Mrs. Sheram's house which was broken [at] the apparent point of entry. A 'Winston 100' cigarette butt freshly put out was located on a table adjacent to the bedroom where Mrs. Sheram was murdered. Tennis shoe prints were observed at the scene. One male sock was found in Mrs. Sheram's bed with Negroid hairs.

"Your affiant was advised by TPD Officer David Lewis on this date of the following: On this date a confidential, reliable informant advised that the hat found by officers at the scene was observed recently worn by Walter William Curry. This informant personally observed this hat. This informant also advised, 'Talk to Mrs. Kelsey about the bloody clothes.' Mrs. Kelsey "Mrs. Kelsey was exhibited the hat found at the murder scene by O/s Mitch Rice and advised it was Walter William Curry's hat.

is the affiant's [sic] grandmother and lives with Walter William Curry at the residence herein described. David Lewis advised this informant is reliable as it has given him information on three occasions during the last 6 months as [255 Ga. 217] to the whereabouts of subjects David Lewis had re-arrest warrants for. This information proved to be correct as David Lewis was able to arrest these subjects based on the informant information.

"Walter William Curry was arrested on 5/13/84 by TPD officers in a stolen car. This car was searched on 5/15/84 by O/s Mitch Rice and Winston 100 cigarette butts were found in the ash tray. When Walter William Curry was observed by arresting officers, his shoe size was noted to be the same as shoe tracks found at the murder scene."

Pretermitting whether by his plea of guilty Curry waived any objection to the admission of the fruits of the search at the sentencing phase of the trial, as the state contends, and addressing this enumeration of error on its merits, we find no error.

The approach taken in Aguilar and in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), has been "rejected ... as hypertechnical and divorced from 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' [cit.]" Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). Therefore, we review this search warrant using the "totality of the circumstances" analysis of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), rather than the "two-pronged test" of Aguilar and Spinelli, on which Curry relies.

Of course, even under the Gates analysis, an informant's "veracity," "reliability," and "basis of knowledge," although not independently dispositive, are not irrelevant. They are instead several of a number of relevant factors, which we must review giving "great deference" to the magistrate's determination of probable cause, keeping in mind that "affidavits are normally drafted by non-lawyers in the midst and haste of a criminal investigation." Illinois v. Gates, supra, 103 S.Ct. 2329-31.

In this case, regardless of any possible deficiency in the showing of the informant's veracity, reliability, or basis of knowledge, the tip was corroborated by Curry's grandmother, who identified the murder-scene cap as the defendant's. This identification, conjoined with the other information supplied by the affidavit, including the similar cigarettes and shoe size, was sufficient to support the magistrate's issuance of the search warrant.

2. Enumerations 1, 3, 4, 5, 6, 7, 8, 13 and 15 complain of various aspects of the voir dire, including an alleged need for a change of venue. We address these contentions below, not necessarily in the order raised.

(a) Curry contends that the denial of sequestered voir dire was error. He argues that, because sequestered voir dire was denied, "the answers of the later jurors were affected by those given by the earlier jurors." Specifically, Curry argues, a number of prospective jurors who had formed opinions favoring the imposition of the death penalty in this case "figured out how they could remain on the jury," while a number of additional jurors "figured out how to get off the jury claiming opposition to the death penalty."

We are not prepared to accept the implicit accusation that a large number of prospective jurors lied under oath as a result of being "educated" by listening to the voir dire of other prospective jurors, but even if we were, it would not follow that all those favorable to the state schemed to stay on while all those favorable to the defense plotted to get off.

We find no support for these factual allegations in the comparative excusal (b) Curry complains that, in several instances, the trial court refused to allow defense voir dire questions seeking to discover whether prospective jurors had formed pre-judgments concerning the punishment to be imposed, or would be unable or unwilling to consider mitigating circumstances.

                rates of the various panels of prospective jurors, and we find no abuse of discretion in the court's denial of sequestered voir dire, either individually, or by panels. 2  Sanborn v. State, 251 Ga. 169(3), 304 S.E.2d 377 (1983)
                

The scope of the voir dire examination should be broad enough to allow the parties to ascertain the fairness and impartiality of the prospective jurors. See Jordan v. State, 247 Ga. 328, 338-339, 276 S.E.2d 224 (1981). On the other hand, prospective jurors should not be asked to pre-judge the case.

There is often a fine line "between questions which ask jurors how they would decide issues of a case if and when such issues are presented and questions which merely inquire whether jurors can start the case without bias or prior inclination." Waters v. State, 248 Ga. 355, 363, 283 S.E.2d 238 (1981). For this reason, the scope of the voir dire examination must, of necessity, be left to the sound discretion of the trial judge.

Reviewing the voir dire in this case, we find no abuse of discretion. While some of the questions excluded by the trial court, if minutely parsed and rigorously analyzed, arguably could have been allowed, nonetheless, the questions that were allowed were more than ample to allow the discovery of bias, prejudice and prior opinion. ³ Devier v. State, 253 Ga. 604(2), 323 S.E.2d 150 (1984).

(c) Curry contends that the statutory question, "Are you conscientiously opposed to capital punishment?" (OCGA § 15-12-164(a)(4)), is so confusing as to render it unconstitutionally vague.

It is true that some jurors have trouble understanding the question. ⁴ Typically, however, jurors comprehend the question, although they may have difficulty deciding how to answer it. Cf. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 852, 83 L.Ed. 841 (1985). ("[V]eniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings.") In any event, an affirmative answer to the question would, by itself, disqualify no juror, and the purpose of further voir dire is precisely to clarify the juror's views on capital punishment. See Spivey v. State, 253 Ga. 187, 197 (n. 3), 319 S.E.2d 420 (1984). Thus, Curry's contention that the question is unconstitutionally vague has no merit.

(d) Curry complains of the court's participation in the voir dire questioning.

We do not agree that the court's questioning invariably rehabilitated jurors exhibiting some bias against the defendant. Not only did the court's questioning in most cases simply clarify what the defense questioning had already established, on one Moreover, we note that under Rule 10.1 of the new Uniform Superior Court Rules (which were not in effect when this case was tried), the trial judge is given the exclusive responsibility for asking "all Witherspoon and reverse-Witherspoon questions."

occasion, the court's questioning resulted in the disqualification of a juror ostensibly rehabilitated by the state's examination. Transcript, pp. 429-32.

Absent some abuse of discretion, which we do not find here, participation by the trial judge in the voir dire examination of...