Dick v. State

• Decision Date: 25 November 1980
• Docket Number: No. 36220,36220
• Citation: 246 Ga. 697,273 S.E.2d 124
• Parties: DICK v. The STATE.
• Court: Georgia Supreme Court

Page 124

273 S.E.2d 124

246 Ga. 697

DICK v. The STATE.

No. 36220.

Supreme Court of Georgia.

Argued July 14, 1980.

Decided Nov. 5, 1980.

Rehearing Denied Nov. 25, 1980.

J. Max Davis, Decatur, for appellant.

Jeff C. Wayne, Dist. Atty., Thomas M. Cole, Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., William B. Hill, Asst. Atty. Gen., for appellee.

CLARKE, Justice.

The appellant, Dennis Dick, was convicted by a jury in the Superior Court of Dawson County for armed robbery and the murder of O. C. (Red) Rider. He was sentenced to death for murder and to life imprisonment for armed robbery. This case is here on direct appeal and for mandatory review of the death sentence.

Summary of Facts

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

The appellant was a resident of Hall County and was familiar with the business establishment operated by the victim, O. C. (Red) Rider, in Dawson County. The victim had acquired a reputation as a bootlegger and was well known throughout Dawson County. Together with Bill Webster and Christopher Hoerner, appellant had been drinking, and about 9:00 p. m. on June 2, 1979, the three companions left in a car belonging to Hoerner for the purpose of getting more beer. As they traveled toward the victim's place of business, the three men formulated a plan to rob the victim. The familiarity of appellant with the victim's place of business was illustrated by the fact that he directed the driver to the location.

Upon arriving at the trailer in which the victim operated his business, Hoerner gave a pistol to appellant, and appellant and Webster entered the trailer. Finding the victim to be alone, the two men bought a six-pack of beer and paid for it. As the victim turned around, appellant pulled the pistol and told him to freeze and give him his money.

Appellant in his statement admitted shooting the victim one time but told authorities that he did so only when the unarmed victim advanced upon him after refusing to turn over the money. Forensic evidence, however, established that the victim was shot behind the left ear with a 38 caliber pistol. There was also evidence of bruises and abrasions on the victim's forehead and left cheek. When the victim was found, he was lying face down in a hallway of the trailer and was not near the counter where the beer was sold. In addition, a bullet hole was found in the floor next to the victim's head bearing out testimony of witnesses that two shots and not one had been heard. The victim's pockets were turned inside out, and the telephone was found torn from the wall.

While the robbery was still in progress, John Bolton, Doyle Martin and Teresa Grant drove up to the trailer. As they stopped, Christopher Hoerner, who was acting as a lookout, stuck a shotgun out the window of his car and told the three not to move. When Webster and appellant ran out of the victim's trailer, appellant ordered the three out of the car at gunpoint and told them to lie on the ground. The two robbers then got back into their car to flee but ran the car into a ditch. At this point, appellant returned and told the three persons lying on the ground to run into the woods and not look back or he would kill them. Having chased away the witnesses, appellant attempted to crank their car but was unable to do so. The three robbers were finally able to flee, however, when Hoerner and Webster finally freed their car from the ditch. At about this time, Terry Allen arrived upon the scene and saw someone running across the yard to the car used by the robbers. He went inside the trailer and discovered the body of the victim and contacted the authorities. Appellant and his co-defendants abandoned the car in which they were fleeing after it broke down. Local law enforcement authorities traced the car to its owner through its tag which had been torn off when it went into the ditch. This information subsequently led authorities to the appellant, and he was arrested the next day after he had walked most of the way to Hoerner's trailer from where the car was abandoned. The other two co-defendants were subsequently arrested also. A metal money box was recovered, but the murder weapon was never found.

Enumerations of Error

(1) The appellant in his first enumeration of error complains that the trial court erred in failing to grant a change of venue. The appellant argues that because of pre-trial publicity and local knowledge of the crime, it was impossible to obtain an impartial jury.

At the outset, we note that the record contains no evidence of prejudicial pre-trial publicity. Appellant concedes that there is no evidence of a "total inundation of the judicial process by the media." Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).

Rather, appellant relies upon the fact that each prospective juror had heard something about the case. However, each prospective juror not struck for prejudice expressly indicated that he or she could lay aside any opinion he or she had formed and render a sentence based solely upon the evidence. Tucker v. State, 244 Ga. 721, 261 S.E.2d 635 (1979); Collier v. State, 244 Ga. 553, 261 S.E.2d 364 (1979); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1960).

The victim was well known in the community but this alone does not indicate that the jury drawn from that community is death prone. Collier v. State, supra.

The record in this case shows that 120 prospective jurors were examined. The appellant was allowed an additional 10 strikes and the state an additional 5. The jurors were examined outside the presence of each other. See Collier v. State, supra. Of these jurors, 49 were excluded for normal cause (prohibited degree of relationship to the victim or prosecutor, unalterable opposition to the death penalty, etc.). Thirteen were excused for prejudice or a fixed opinion as to guilt or innocence. This low percentage of veniremen excused for prejudice (approximately 10%) strongly corroborates the expressions of impartiality by the other jurors who were not excused for prejudice. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1974); Tucker v. State, supra (5% dismissal rate corroborates absence of prejudicial bias); Collier v. State, supra (20% dismissal rate corroborates absence of prejudicial bias); Coleman v. State, 237 Ga. 84, 226 S.E.2d 911 (1976) (46% dismissal rate corroborates absence of prejudicial bias); Butler v. State, 231 Ga. 276, 201 S.E.2d 448 (1973) cert. den., 420 U.S. 907, 95 S.Ct. 825, 42 L.Ed.2d 836 (1974) (36% dismissal rate corroborates absence of prejudicial community bias); cf. Irvin v. Dowd, supra (62% dismissal rate corroborates actual juror partiality).

Furthermore, the appellant failed to exhaust all of his peremptory challenges. Coleman v. State, supra; Davis v. State, 241 Ga. 376, 247 S.E.2d 45 (1978). We also note that the state presented an overpowering and overwhelming mass of evidence, on the question of appellant's guilt. The appellant did not dispute such evidence and in fact admitted under oath that he was the triggerman. Under this evidence, no other verdict could have been returned by a rational trier of fact. See Coleman v. State, supra; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

A motion for change of venue lies within the sound discretion of the trial judge. Jarrell v. State, 234 Ga. 410, 216 S.E.2d 258 (1975); Allen v. State, 235 Ga. 709, 712, 221 S.E.2d 405 (1975); Coleman v. State, supra. We find no abuse of discretion here.

Appellant also asserts that certain jurors were improperly excused in violation of the rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). However, each such prospective juror upon voir dire responded that he or she could not impose the death penalty under any set of circumstances. The jurors' responses satisfied the test set forth in Witherspoon, supra, as reiterated in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Harris v. Hopper, 243 Ga. 244, 253 S.E.2d 707 (1979); Collier v. State, supra; Hance v. State, 245 Ga. 856, 268 S.E.2d 339 (1980).

(2) In his second enumeration of error, the appellant asserts that his confession was not freely and voluntarily given.

Immediately after his arrest, the appellant was taken to the sheriff's office where he signed a waiver of rights. However, he made no statement at that time. Some ten hours later, in the presence of his brother, and after conferring with his brother, he gave local authorities a complete confession. The trial court, after a Jackson v. Denno hearing, admitted the confession, holding it to have been made freely and voluntarily. Appellant argues that but for the urging of his brother with whom he consulted, he would not have confessed. The appellant's brother told him that if he did not confess, he would get the death penalty.

A confession otherwise admissible is not inadmissible because it was prompted by advice of a relative of the defendant. Shavers v. State, 244 Ga. 491, 260 S.E.2d 883 (1979). ¹

The appellant further argues that the initial waiver of rights signed the morning of his arrest was not a knowing waiver in that he was tired, hungry, withdrawing from alcohol and emotionally upset at that time.

The state introduced evidence that appellant was not drunk nor in such a condition as to be unable to understand the consequences of his action. Moreover, the statement was not taken immediately after the arrest but some ten hours later, after appellant consulted with his brother and was again advised of his rights. It is clear from the taped confession that the confession was voluntary. The ten-hour lapse between the time of the waiver and the actual confession at which time the previous warnings were reiterated did not render the confession inadmissible. Stapleton v. State, 235 Ga....