Davis v. State
| Decision Date | 15 April 1976 |
| Docket Number | No. 30635,30635 |
| Citation | 225 S.E.2d 241,236 Ga. 804 |
| Parties | Curfew DAVIS v. The STATE. |
| Court | Georgia Supreme Court |
James E. Weldon, H. J. Thomas, Jr., LaGrange, for appellant.
William F. Lee, Dist. Atty., Newnan, Robert H. Sullivan, Asst. Dist. Atty., Carrollton, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Atlanta, for appellee.
Curfew Davis was indicted for the murder of Ann Starnes by the Grand Jury of Troup County. He was tried before a jury, found guilty and sentenced to death. He appeals from the judgment and the sentence.
According to the evidence produced on the trial Ann Starnes was last seen alive on July 19, 1974, at approximately 1:30 p.m. She worked for Linden Laboratories and on that date she had picked up blood specimens and pap smears from the Women's Clinic in LaGrange, Georgia. She was a resident of Muscogee County, Georgia, and on July 22, 1974, the Sheriff's Department of that county received a report that she was missing. On July 28, 1974, her 1973 Chevrolet Malibu automobile was found in LaGrange parked on a side street. Curfew Davis was arrested the following day and charged with automobile theft.
After being fully informed of his rights the appellant was questioned and denied seeing the victim or her car or having been in the car. Later when told that he had been seen in the car, he stated that he obtained Miss Starnes' car from one E. D. Holloway. Investigation revealed that Holloway's work records showed that he was in Atlanta at the time the appellant claimed to have obtained the automobile from him.
On July 19, 1974, the day Miss Starnes disappeared, Curfew Davis was living in LaGrange with Betty Bailey. Betty Bailey testified that she kept a .22 caliber pistol in her bedroom drawer, but that on July 22 she found the pistol in a different drawer and did not know who had moved it. On July 30 police officers searched Miss Bailey's home with her consent and seized the pistol which was introduced into evidence. The bullet in Miss Starnes' skull was fired from this .22 caliber pistol.
On July 31 upon further questioning Curfew Davis told the police that he had thrown Miss Starnes' car keys in a hedgerow. Upon searching the hedgerow at the location specified the officers found the keys to Miss Starnes' car.
On August 4, 1974, Curfew Davis told the police that he first spotted the car on a street in LaGrange and told them that he took certain laboratory supplies from the car and discarded them in a wooded area. The supplies belonged to Linden Laboratories and were valued at $200 to $300. Police found them at the location specified by the appellant. The appellant stated that the keys were in the car when he took it.
On August 28, 1974, the appellant told police officers he would show them the location of Miss Starnes' body. Appellant guided two officers to a wooded area where Miss Starnes' badly decomposed remains consisting primarily of her skull and bones were found. One officer stayed at the scene until a representative of the Georgia Crime Laboratory picked up her body.
Dr. Larry Howard of the Georgia Crime Lab examined the remains and determined that Miss Starnes died of a .22 caliber bullet in her brain. There were also severe fractures of her face and jaw bones. Her clothing had been torn into strips and tied together as if they had been used as bonds to tie her.
A positive identification of Miss Starnes' remains was effected by identification of her teeth by her dentist, identification of eye glasses found by her body as the same prescription given to her by her ophthalmologist, identification of two rings found at the scene by the friend who had given them to her, and identification of the torn clothing found with the remains as belonging to Miss Starnes.
On the same day appellant led the police to Miss Starnes' body, he made a statement contradicting his prior statements. At this time he stated that on July 19, 1974, he was walking the streets of LaGrange when he saw Miss Starnes' car. He noticed the keys in the ignition and was about to leave when he noticed Miss Starnes tied and gagged in the back seat. She had a wound on the left side of her head. When he got in he saw her move. He got in and drove to Swift Street where he took the laboratory equipment out of the trunk and threw it away. He then drove to a wooded area where he dumped Miss Starnes' body. He stated that she was dead at this time. He checked her body when he dumped it in the woods. He cleaned up the blood from Miss Starnes on the back seat. (Police officers found no trace of blood in the car.)
On August 31, 1975, the appellant made another statement which contradicted his earlier statements. He stated that he was with JoAnn Porter and 'Lewis' when he went into a store to buy some beer; that when he came out of the store, he saw JoAnn and Lewis in the process of hijacking an automobile; that the car was being driven by a young woman, whom JoAnn ordered to slide over from the steering wheel; that JoAnn had a small revolver and when he asked what was going on, JoAnn ordered him to get in and drive; that they drove to JoAnn's house and everyone got out and went inside; that 'Lewis' told him to take the car and clean it out; that he took the stuff from the car and scattered it in a trash pile; that he returned to JoAnn's house where JoAnn and Lewis had taken the gagged victim into a bedroom; that 'I was still trying to figure what was going on'; that he then heard shots and rushed into the bedroom and took a baseball bat away from JoAnn after she had struck the victim with it; that 'Lewis' had taken a pistol away from JoAnn; that after things quieted down they discussed what they would do with the girl; that he helped them dump Miss Starnes' body in the wooded area, and that he kept her automobile.
The police investigated but were never able to substantiate the allegations concerning JoAnn Porter and Lewis.
The defense presented no evidence.
1. In his first three enumerations of error the appellant alleges error in excluding potential jurors who stated that they had conscientious objections to capital punishment, and in Enumerations 11, 12, and 13 makes related enumerations concerning supplementing the transcript.
Three issues are involved herein. They are: (a) The sufficiency of the transcript of the voir dire examination on the issue of conscientious objection to capital punishment; (b) The sufficiency of the examination of the jurors who were disqualified because of conscientious objections to capital punishment; and (c) The authority of the trial court under Code Ann. § 6-805 to supplement the trial transcript of the voir dire examinaton by order.
In Owens v. State, 233 Ga. 869, 214 S.E.2d 173 (1975) we limited the power of the trial court to supplement the trial transcript pursuant to Code Ann. § 6-805 in the absence of a transcription of the voir dire examination by the reporter. We permitted supplementing the trial transcript in Coker v. State, 234 Ga. 555, 216 S.E.2d 782 (1975) only to the extent of establishing that no jurors had been excused for conscientious objection to capital punishment after appellant in that case had asserted in his brief that a number of prospective jurors had been excused on this ground.
As we read the transcript of the voir dire examination of the prospective jurors in the case sub judice, questions and the answers thereto concerning conscientious objection to capital punishment on the part of those jurors excused on that ground are reported in the transcript adequately for a determination of the Witherspoon issue. This being the case, it is not necessary for us to consider the order of the trial court supplementing the record or his authority to do so under the cited statute. Code Ann. § 6-805.
With one exception, each juror excused for cause on the ground that he was conscientiously opposed to capital punishment stated that he would not vote for the death penalty under any circumstances. This exception involved one prospective juror on the first panel of twelve who were examined. The transcript reflects the following:
'Are any of you conscientiously opposed to capital punishment? Juror Lamb: I am.
Fleming: You are? Juror Lamb: Yes. Mr. Fleming: They're qualified, your Honor. Mr. Weldon: Your Honor, I object to that. We have a right to a fair and impartial Jury just because he's opposed to capital punishment, I mean, capital felony. We've got a man that's got just about as much right to a fair trial as anybody else. The Court: Well,- Mr. Fleming: (Responding.) Your Honor, please, I consider that as an improper statement. The fact that a person opposes capital punishment or believes in capital punishment, doesn't make them fair or impartial, one way or the other. The Witherspoon case very clearly holds that if a person will under no circumstances go for it be instructed. The Court: Have you got your objections, Mr. Weldon, for the Record? Mr. Weldon: (Responding.) Yes, I feel that this Juror should be allowed to remain, assuming that she's, that would be fair and impartial towards both sides, and the fact that she's opposed to capital punishment should not disqualify her. The Court: Alright, Mr. Weldon. Disqualify the Juror for cause. Come out of the Jury Box, please.'
Although the objection to this juror viz., 'the fact that she's opposed to capital punishment would not disqualify her' is insufficient, nevertheless the examination of this juror as indicated by the reporter's transcript is inadequate under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), as amplified in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138,...
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