Dampier v. State

• Decision Date: 13 March 1980
• Docket Number: No. 35378,35378
• Citation: 245 Ga. 427,265 S.E.2d 565
• Parties: DAMPIER v. The STATE.
• Court: Georgia Supreme Court

Page 565

265 S.E.2d 565

245 Ga. 427

DAMPIER v. The STATE.

No. 35378.

Supreme Court of Georgia.

Argued Sept. 12, 1979.

Decided Feb. 20, 1980.

Rehearing Denied March 13, 1980.

Hendrix & Shea, John W. Hendrix, Penny J. Haas, Savannah, for appellant.

Andrew J. Ryan, III, Dist. Atty., Arthur K. Bolton, Atty. Gen., W. Davis Hewitt, Staff Asst. Atty. Gen., for appellee.

MARSHALL, Justice.

The appellant was convicted of murder, armed robbery and motor vehicle theft. He received a sentence of death for murder, 20 years' imprisonment for armed robbery, and seven years' imprisonment for motor vehicle theft. His case is here on direct appeal and for mandatory review of the death sentence imposed.

From the evidence presented at trial, the jury was authorized to find the following:

On the morning of February 8, 1977, the appellant's father drove the appellant to a bus stop in order for him to keep an appointment with his probation officer. The appellant waited until his father had left and then, instead of boarding the bus, he went to see a 15-year-old female whom he had dated. The appellant and the young girl spent the day together. The girl received a call that afternoon from Albert Kenny Dickey, the co-defendant in this case. Dickey invited the two out to take various drugs. Telling her mother that they were going to purchase some cigarettes, the two left and met Dickey, who was parked on a nearby road waiting for them.

The three began to ride around and take various drugs, including marijuana and barbiturates. When they ran out of drugs, the two males began discussing a plan to obtain money. Dickey suggested that they rob the Exxon service station in Port Wentworth, Georgia. Prior to this, Dickey had attempted to talk the night attendant, Michael Hilton, into faking an armed robbery of the station and splitting the proceeds. Hilton had refused to go along with such a plan. Appellant and Dickey decided to carry Hilton to a secluded area and "get rid of him." The appellant noted that they were not armed, and he suggested where they could obtain a weapon. They proceeded to a friend's house, where the appellant secured a sawed-off shotgun along with five slugs and some marijuana. He retrieved his knife, and Dickey procured a 30-30 caliber rifle. The three then went to the Exxon station, where they talked to the victim and told him they would return later in the evening to smoke some marijuana. They did this in order to prevent the victim from being suspicious when they returned. The appellant and his two companions parked where they could observe the station, and they continued to take drugs. When they were sure that the police officer who patrolled the area had left, they approached the station.

In the early morning hours of February 9, 1977, the victim bagged the day's receipts from the station, and he was going to take a nap in his car. When the appellant and Dickey approached, he recognized them, and they talked. The appellant persuaded the victim to join them in the victim's white Honda automobile and smoke some marijuana. After they had entered the car, the appellant pulled out the sawed-off shotgun he had hidden in the sleeve of his coat. Dickey brandished the knife the appellant had given him, and he placed it against the victim. They then proceeded to rob the victim of approximately $150. The appellant then forced the victim to drive him to a secluded area while Dickey and the girl followed in Dickey's car. Once at a secluded rural area, the appellant forced the victim to get out of his car and walk into a wooded area. The victim begged the appellant not to beat him. When the victim realized he was going to be shot, he dropped to his knees and, placing his hands around his head, he begged for his life. The appellant hesitated for some five minutes while the victim pleaded for his life. During this time, Dickey kept encouraging the appellant to shoot. Finally, the appellant shot the victim in the face, killing him instantly. The appellant then reloaded the gun. Dickey asked for the gun, and then he shot in the direction of the victim's body.

The appellant then reloaded the weapon, and the three fled, taking the victim's car with them. Appellant and his companions left the state and went to various states, including North Carolina. The following week, they returned to Chatham County, Georgia, where they were arrested at a local motel. When arrested they had in their possession the shotgun which ballistics tests determined to be the murder weapon. They also had a hat belonging to the victim and the victim's car. Both the appellant and Dickey gave complete confessions to local authorities.

1. In the appellant's first and fourth enumerations of error, he argues that his convictions should be reversed on the general grounds. Having reviewed the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact was authorized to find the appellant 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); Crawford v. State, 245 Ga. 89, 263 S.E.2d 131 (1980). These enumerations of error are without merit.

2. After their capture, North Carolina authorities charged the three with the stabbing death of a grandmother and her three-year-old granddaughter. In his fifth enumeration of error, the appellant argues that the trial court erred in failing to grant his motion in limine, which sought to prevent any mention of the words "North Carolina" during the trial. However, the trial court did rule that the prosecution had to limit the state's evidence to the crimes occurring in Chatham County, Georgia. Although the district attorney did not introduce evidence of separate crimes committed in North Carolina, he did submit evidence, over objection, that the appellant had gone to that state and that the officers of that state had questioned him while he was in custody in the Chatham County Jail. The appellant argues that due to the pretrial publicity, any mention of North Carolina would allow the jury to infer evidence of an independent crime. We do not agree. The evidence submitted was relevant to flight and to the voluntariness of the appellant's confession and was, therefore, admissible. Hughes v. State, 239 Ga. 393, 236 S.E.2d 829 (1977). (See Division 5, infra.)

3. In his sixth enumeration of error, the appellant contends that the trial court erred in failing to grant a motion to suppress his confession on the grounds that it was not given freely and voluntarily and that it was made without benefit of counsel or with a knowing and intelligent waiver thereof.

The appellant was arrested on a weekend, and as is local practice, an attorney was not appointed to represent him until the following Monday. The appellant gave his statement on Sunday, one day after his arrest and immediately after being interrogated by North Carolina authorities. Initially, the appellant requested an attorney before making any statement. However, after talking to detectives from North Carolina, he asked to speak to local authorities the following day, Sunday. He then waived his right to counsel and gave a complete confession.

Before admitting the appellant's confession in evidence, the trial court held a Jackson-Denno (378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908) hearing to determine its admissibility. The trial court found the statements to have been freely and voluntarily given. Unless clearly erroneous, a trial court's factual determinations relating to the credibility of witnesses and the admissibility of confessions will be upheld on appeal. United States v. Watson, 469 F.2d 362 (5th Cir. 1972); Crawford v. State, supra; Hurt v. State, 239 Ga. 665(2), 238 S.E.2d 542 (1977). The appellant's statements to the local authorities, in which he waived his rights prior to making his inculpatory statement, were sufficient to support the trial court's ruling. Crawford v. State, supra. The trial court did not err in overruling the appellant's motion to suppress.

4. In the seventh enumeration of error, the appellant argues that the trial court erred in failing to grant his motion for reappointment of a psychiatrist and reexamination of the appellant's mental condition.

Upon request, the appellant was granted a psychological examination by a state-appointed psychiatrist. In his motion for a mental examination, the appellant asked that his mental condition be determined as to his ability at the time of the commission of the crime to distinguish between right and wrong; his ability to understand the nature of the charges and help in his defense; and whether, due to mental disease, injury or congenital deficiency, he was suffering under a delusional compulsion when he committed the crimes charged. A team of experts from Central State Hospital interviewed the appellant and the co-defendant, Dickey. They concluded in identical reports that both persons were sane at the time of the commission of the crime and were able to participate in their defense.

The appellant complains that these reports were merely perfunctory. Therefore, the appellant argues that the trial court abused its discretion in not ordering another examination, and that this violated his constitutional rights.

The granting or denial of a motion for appointment of an expert witness lies within the sound discretion of the trial court and will not be overturned on appeal unless there has been an abuse of discretion. Holsey v. State, 235 Ga. 270(3), 219 S.E.2d 374 (1975). See generally Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977); Welch v. State, 237 Ga. 665(8), 229 S.E.2d 390 (1976). Furthermore, where, as here, there was no special or general plea of insanity, the trial court did not abuse its discretion in denying the initial motion for psychiatric evaluation. Lewis v. State, 239 Ga. 732(2), 238 S.E.2d 892 (1977); Chenault v. State, 234 Ga. 216(1), 215 S.E.2d...