Davis v. State
| Decision Date | 11 March 1986 |
| Docket Number | No. 42697,42697 |
| Citation | 340 S.E.2d 869,255 Ga. 598 |
| Parties | DAVIS v. The STATE. |
| Court | Georgia Supreme Court |
William J. Smith, Dist. Atty., Columbus, J. Gray Conger, Douglas C. Pullen, Asst. Dist. Attys., Michael J. Bowers, Atty. Gen., Eddie Snelling, Staff Asst. Atty. Gen., for the State.
This is a death penalty case. John Michael Davis was indicted for the murder and armed robbery of Susan Marlene Isham, and for theft by bringing stolen property into the state of Georgia. He entered a plea of guilty to the theft charge and proceeded to trial on the other two charges. He was found guilty by a jury of both, and the jury recommended that the death penalty be imposed for the murder. He was sentenced to death for the murder, twenty years for the armed robbery, and ten years for the theft. This is his appeal. 1
Two confessions made by Davis comprised a substantial part of the state's evidence. The second of these contained numerous credible details. Davis recounted that in December, 1983, he and his girlfriend, Patricia Underwood, stole a Cadillac in Philadelphia. They soon realized that the stolen car belonged to a drug dealer named Sambucca and decided to leave the area. They kept Sambucca's identification cards, stole a Datsun 280Z, and drove to Georgia where they spent Christmas. On December 30, 1983, they checked into a motel in Columbus. That evening they went to a bar across the street and talked with a member of a band playing there. 2 Later that night, Davis wrecked the Datsun, left it at a convenience store, and secured a ride to the motel.
After noon the next day, December 31, Davis went back to the bar. The man he had met the evening before, who was then tending the bar, introduced Davis to a woman. The woman wanted to buy drugs, Davis agreed to sell her some, and they went back to the motel together. Underwood was in the room. The girl took a seat near the bathroom. Davis went into the bathroom to relieve himself; while there he picked up a curling iron and ripped the cord off. He came out of the bathroom behind the victim, wrapped the cord around her neck, knocked her to the floor and put his knee in her back. Then he dragged her into the bathroom. He and Underwood Davis took the stand at trial and testified that he had confessed to the murder to protect Underwood. He admitted bringing the victim back to the room but said that he left the victim and Underwood alone there for about 15 minutes while he went to the office to reserve the room until Monday [January 2, 1984], and when he returned the victim was on the floor, Underwood was on top of her, and the victim was dead.
took the money from her purse and some of her jewelry. In one of the confessions he [255 Ga. 599] said that as they left the motel room, the victim was lying on the bathroom floor gulping. They fled in the victim's Mercury and proceeded to Philadelphia and then New Jersey.
The operator of the motel, Harold Kite, testified that the defendant, accompanied by a woman, registered on December 30, 1983, under the name of Sambucca. The next day the woman came in shortly after noon, identified herself as Patricia Sambucca, and paid for another night. Kite's son, Thomas, testified that he was at the desk from around noon until 7 or 8 in the evening of the 31st. He was there with his father when a woman came in and paid for that night. About 2:30 or 3, when he was alone in the office, he saw the defendant and a woman drive up in a light colored Mercury Grand Marquis. He then saw the two of them in conversation with the woman he thought was the defendant's wife. In a few minutes the defendant came in, picked up a key to his room, and left. Five or ten minutes later he came back, appeared nervous, and paid for an additional night [apparently in an effort to delay discovery of the body]. Ten or fifteen minutes later Kite saw the defendant and the woman he knew as Patricia Sambucca leave in the Mercury. A maid discovered the victim the next day, January 1, 1984.
Gary Lofton testified that he had been a friend of the victim for several years, and that in December of 1983 he was working at the Peachtree Pub in Columbus. He also played in a band that sometimes played at the pub. He testified that he met the defendant on December 30, 1983, at the pub. Earlier that day he had spoken to him briefly as both left their rooms at the motel; the defendant and his wife had asked what was happening across the street, apparently meaning the pub. At the pub, the defendant introduced himself as Jack and said he was from Philadelphia and was staying at the motel. He introduced the woman with him as his wife, Pat, and said she was an exotic dancer. Around noon or 1 p.m. the next day the victim stopped by the pub. The defendant was sitting at the bar when she arrived, and she sat by him. After a while Pat came in, spoke to the defendant briefly, and then sat on the other side of the bar. The defendant and the victim sat and talked for about an hour. Then the victim told him that she was on her way to Atlanta, but she was going to stop by the motel with the defendant for about five minutes before she left. The defendant and the victim then left the bar, exiting by the back door. At that time, Lofton had to go in the back for a case of beer. When he returned with it, he noticed that the defendant's wife was no longer at the bar. He did not know exactly when she had left.
The next day, he received a call at the pub telling him that the victim had not shown up in Atlanta. He then noticed that an ambulance and some police cars were at the motel. He went across the street and was told a young woman had been murdered. When he volunteered that he might be able to identify her, he was shown the body. It was that of Susan Marlene Isham.
Warren Tillman, a medical examiner with the state, testified that he examined the body of Susan Marlene Isham on January 2, 1984; that she was 65 inches tall and weighed 175 pounds; that she died from asphyxiation caused by strangulation; and that pressure would have had to be applied for three to four minutes in order to cause her death. Davis raises 29 enumerations of error. Of these, six relate to voir dire, and will be considered first.
1. Davis was tried, as is customary in capital cases in Georgia, by a jury which was qualified under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), prior to commencement of the guilt-innocence phase of his trial. He contends on appeal that this produced a jury so conviction prone that it was not a representative cross-section, and therefore his conviction must be reversed. He relies on Grigsby v. Mabry, 758 F.2d 226 (8th Cir.), cert. granted sub nom. Lockhart v. McCree, 474 U.S. 816, 106 S.Ct. 59, 88 L.Ed.2d 48 (1985).
We find that Davis failed to challenge the Witherspoon voir dire at trial. Having raised no objection below, he may not now assert error on this ground. Hance v. State, 254 Ga. 575, 576 n. 2, 332 S.E.2d 287 cert. denied, 474 U.S. 1038, 106 S.Ct. 606, 88 L.Ed.2d 584 (1985). We note, however, that we have previously expressed our disagreement with Grigsby v. Mabry, supra, which is not binding on this court. Ford v. State, 255 Ga. 81 (7), 335 S.E.2d 567 (1985); accord Hance v. State, supra; Mincey v. State, 251 Ga. 255 (2), 304 S.E.2d 882, cert. denied, 464 U.S. 977, 104 S.Ct. 414, 78 L.Ed.2d 352 (1983).
2. Davis also complains that the trial court erred in failing to strike for cause a juror, Horne, who expressed a bias in favor of the death penalty. The juror was extensively questioned by the prosecutor, the defendant and the court in an effort to clarify her position. Having reviewed the transcript, we conclude that the trial court did not err in overruling the defendant's motion that she be stricken from the jury. Hance v. State, 245 Ga. 856 (6), 268 S.E.2d 339 cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 611 (1980); Spivey v. State, 253 Ga. 187, 194-96, 319 S.E.2d 420 (1984), cert. denied, 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809 (1985).
In his brief, defendant makes reference to "several venirepersons [who] indicated ... clear bias in favor of the death penalty and against Mr. Davis" who were not excused. His only objection at trial was to Horne, and the others referred to in the brief are not identified. The trial court did not err by not excusing any jurors on its own motion. Spivey v. State, supra, 253 Ga. at 194, 319 S.E.2d 420.
3. The defendant complains that the trial court erred by not excusing for cause three jurors employed by law enforcement agencies. The three he complains of are McClendon and Tillman, correctional officers at an institution referred to as "Jack Rutledge" or as "Jack T.," and Richardson, a former police officer then working for the state at Metro Correctional Institution. The defendant did not object to any of the three at trial, and he may not raise this issue for the first time on appeal. Miller v. State, 139 Ga. 716 (2), 78 S.E. 181 (1913). We note, however, that Hutcheson v. State, 246 Ga. 13, 268 S.E.2d 643 (1980), on which he relies, is not controlling. See Jordan v. State, 247 Ga. 328 (6), 276 S.E.2d 224 (1981); Wilson v. State, 250 Ga. 630 (4a), 300 S.E.2d 640 cert. denied 464 U.S. 865, 104 S.Ct. 199, 78 L.Ed.2d 174 (1983).
4. Defendant's contention that the trial court impermissibly restricted the scope of voir dire is simply not borne out by the record. Nor is his contention that jurors Brown and Hudson were erroneously excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Alderman v. State, 254 Ga. 206 (4), 327 S.E.2d 168 cert. denied 474 U.S. 911, 106 S.Ct. 282, 88 L.Ed.2d 245 (1985).
5. During the voir dire, a juror who...
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