Depree v. State
| Decision Date | 05 September 1980 |
| Docket Number | 36301,Nos. 36300,s. 36300 |
| Citation | 271 S.E.2d 155,246 Ga. 240 |
| Parties | DEPREE v. The STATE (two cases). |
| Court | Georgia Supreme Court |
Thurbert E. Baker, Louise T. Hornsby, Atlanta, for appellant (Case No. 36300).
Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Mary Beth Westmoreland, Staff Asst. Atty. Gen., for appellee.
Louise T. Hornsby, Atlanta, for appellant (Case No. 36301).
Bernard Depree, pro se (Case No. 36301).
Appellant Bernard Depree, alias Bernard Dupree, and his co-defendant, David Burney, Jr., were jointly tried for the murder of Atlanta Police Officer Frank Robert Schlatt and for two counts of armed robbery at a furniture store on May 13, 1978. The State waived the death penalty. Appellant was found guilty of murder and two counts of armed robbery and was sentenced to life imprisonment on each count with the sentences to be served consecutively. Burney was also convicted and received three life sentences which this court affirmed in Burney v. State, 244 Ga. 33, 257 S.E.2d 543 (1979). A third co-defendant, Warren McClesky, was tried separately, convicted as the triggerman in the police officer's murder, and was sentenced to death. This court affirmed McClesky's convictions and sentences in McClesky v. State, 245 Ga. 108, 263 S.E.2d 146 (1980). Ben Wright, Jr., a fourth defendant in the robberies and murder, testified in behalf of the State in exchange for a recommendation of a twenty year sentence.
The factual situations in the robberies and murder are described in the Burney and McClesky decisions and will not be repeated here.
1. In Case No. 36300, appellant alleges in his first enumeration of error that he suffered extreme prejudice as a result of the denial of his motion to sever his trial from that of his co-defendant. He contends that his trial was prejudiced because the confession of his co-defendant was admitted into evidence and because his co-defendant's attorney had never tried a criminal case "properly" and had antagonized the jury before the trial had begun. Beyond those statements, appellant offers no demonstration of prejudice.
Under Code Ann. § 27-2101 (Ga.L.1971, pp. 891, 892), defendants in capital felony cases in which the State has waived the death penalty may be tried jointly or separately in the discretion of the trial court. Being discretionary, the trial court's denial of the motion to sever will not be disturbed unless the defendant can make a clear showing of prejudice. Reaves v. State, 242 Ga. 542, 546, 250 S.E.2d 376 (1978). See also Cain v. State, 235 Ga. 128, 218 S.E.2d 856 (1975).
Following a Jackson-Denno hearing, Burney's confession was admitted into evidence through the oral testimony of police officers. In this testimony, Burney made references to himself, Warren McClesky, Ben Wright and "another black male," or "other black male subject." Appellant was never identified in the testimony nor did it tend to identify him.
The procedure the State followed in editing out appellant's name from his extra-judicial statement comports with procedures suggested in Paoli v. United States, 352 U.S. 232, 237, 77 S.Ct. 294, 297-298, 1 L.Ed.2d 278 (1957) (), and followed in State v. Braxton, 294 N.C. 446, 242 S.E.2d 769 (1978). In Paoli, the court said, In Braxton, the Supreme Court of North Carolina said there was no violation of the rule set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) when the statements of multiple defendants were edited to delete therefrom any references to co-defendants. See also Boyd v. State, 244 Ga. 130, 259 S.E.2d 71 (1979).
Appellant complains by supplemental brief that the State first stated to the trial court that it would not violate appellant's rights in regards to the statement by the co-defendant and the Bruton rule but as the trial progressed, the appellant was identified. He contends that after the situation calling for the Bruton rule "no longer obtained" the State used that rule as a weapon against appellant by explaining a redaction process to the jurors, thus advising them that they were no longer being thwarted by such legal niceties from finding out that the appellant was named in his co-defendant's confession. He claims this was a "well engineered plan to red flag" the co-defendant's confession against him and was prejudicial. We find no merit to the argument.
After appellant's edited statement was introduced, appellant's co-defendant took the witness stand to denounce part of the statement. This freed the State to cross examine him about his extra-judicial statement, including the identity of his co-defendant, and it also gave appellant the right to cross examine. Such a procedure does not violate the Bruton rule. In United States v. Morgan, 562 F.2d 1001 (1977), cert. denied 434 U.S. 1050, 98 S.Ct. 504, 54 L.Ed.2d 802, the court held that where a particular defendant took the stand and testified that he did not make a statement that had been introduced and was available for cross examination by his co-defendants, there was no violation of the ruling in Bruton.
Appellant misplaces his faith in the purpose of Bruton, a narrow decision which overruled prior holdings that a court could issue curative instructions to a jury after a co-defendant's extra-judicial statement not subject to cross examination was introduced into evidence. The evil Bruton sought to cure was the violation of the Confrontation Clause of the Sixth Amendment. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Once appellant's co-defendant took the stand and answered questions concerning his statement, he was subject to cross examination by the appellant and the Bruton rule had no application.
Appellant does not argue the effectiveness of his co-defendant's counsel nor the contention that he had antagonized the jury and that portion of his first enumeration is considered abandoned.
Appellant has failed to make a clear showing of prejudice and the trial court did not err in denying the motion to sever.
2. Appellant contends the trial court erred in refusing to disqualify two jurors for cause. One of the jurors was a former policeman, the second had relatives who were police officers. Both stated during voir dire that the fact that the murder victim was a police officer would have some effect on the way they thought in the case. However, the first juror, in response to a question from the court asking him if he could be a fair and impartial juror replied, "I would like to think that I could, yes sir." The second juror, in response to a similar question, stated that she harbored no doubts about being fair and impartial.
While the record reflects some indication that each juror might be influenced by the fact that the case involved the murder of a policeman, neither indicated a fixed opinion that could not be influenced by the evidence. We held in Taylor v. State, 243 Ga. 222, 253 S.E.2d 191 (1979), that the conduct of the voir dire and whether to strike a juror for cause are within the discretion of the trial court and the court's rulings are proper absent some manifest abuse of discretion. See also Patterson v. State, 239 Ga. 409, 238 S.E.2d 2 (1977) and cits.
In Tennon v. State, 235 Ga. 594, 220 S.E.2d 914 (1975), we held that to disqualify a juror who has formed an opinion based on hearsay, the opinion must be so fixed and definite that it could not be changed by the evidence or the charge of the court upon the trial of the case. The record in this case fails to show that either juror had voiced an opinion as to the guilt or innocence of the accused but reflected only on what influence the juror might feel because the murder victim was a policeman. We find no error in the denial by the trial court of the request to excuse the...
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