Dobbs v. State

• Decision Date: 24 February 1976
• Docket Number: No. 30453,30453
• Court: Georgia Supreme Court
• Parties: Wilburn Wiley DOBBS v. The STATE.

Page 3

224 S.E.2d 3

236 Ga. 427

Wilburn Wiley DOBBS v. The STATE.

No. 30453.

Supreme Court of Georgia.

Feb. 24, 1976.

Rehearing Denied March 11, 1976.

Melvin Robinson, Atlanta, for appellant.

Earl B. Self, Dist. Atty., Jon B. Wood, Asst. Dist. Atty., Summerville, Arthur K. Bolton, Atty. Gen., Harrison Kohler, Staff Asst. Atty. Gen., Atlanta, for appellee.

INGRAM, Justice.

This is a companion case to Burke v. State, 234 Ga. 512, 216 S.E.2d 812 (1975) and involves a review by this court of alleged trial errors and the death sentence imposed upon appellant in the Superior Court of Walker County. Appellant was charged on December 14, 1973, with one count of murder, two counts of armed robbery and two counts of aggravated assault. A Walker County grand jury indicted appellant for these offenses on May 8, 1974, and he was convicted by a jury on all counts in a trial which began on May 20, 1974. Appellant received the death sentence for the offense of murder, ten years imprisonment for each count of aggravated assault, and life imprisonment for each count of armed robbery.

Summary of the Evidence

Early on the morning of December 14, 1973, appellant Wilburn Wiley Dobbs asked Walter Lee Harris and Charles Burke if they wanted to commit a robbery. Appellant said he needed money so the three of them drove in appellant's 1967 blue Chevrolet to a grocery store and gas station owned by Roy L. Sizemore. They looked around the store and left but thereafter returned to the store in different coats. Appellant told Harris to go inside the store and ask Mr. Sizemore for a gas can. While Burke stayed in front of the gas station, appellant took his sawed-off shotgun and went around to the back of the store. Mr. Sizemore went outside to show Burke where the gas can was, and when he did appellant darted inside the store.

Sixty-two-year-old Grace Foster was in the store shopping for groceries and appellant pointed the shotgun at her. When Mr. Sizemore re-entered the store, appellant covered him with the shotgun while Harris searched Mr. Sizemore and took his wallet. Mr. Sizemore told the robbers that he had heart trouble and they could have anything they wanted but begged them not to shoot him or hurt Mrs. Foster.

Appellant shoved Mr. Sizemore to the back of the room, made him lie down and hit him two times on the back of the head with the butt of the shotgun. When Mrs. Foster tried to run to Mr. Sizemore's side, appellant pointed the shotgun at her, threatened to shoot her and told her to keep her mouth shut. Although Mrs. Foster begged appellant to spare Mr. Sizemore, appellant turned to Mr. Sizemore, who was lying helpless on the floor, and fired a shotgun blast into his stomach. This wound caused Mr. Sizemore's death. William Austin a route salesman for Mayfield Dairy Farms, entered the store to make a delivery and appellant also fired his shotgun at him.

While Harris was taking the money from Mr. Sizemore's cash register, appellant hit Mrs. Foster in the back of the head with the butt of his shotgun and knocked her unconscious. Appellant, or one of his companions, then placed his foot on Mrs. Foster's hand and tore her pocketbook out of her grasp. Mrs. Foster had a skull fracture above the eye, a brain concussion, cuts on her forehead and scalp, bruises, and scratches as a result of this beating. Here eyelids were swollen, both of her eyes were black, and ten stitches were required to close one of her cuts. After appellant and his companions left the store with $210 taken by them, Mr. Austin (the route salesman) went to Mr. Sizemore and tried to find a pulse but Mr. Sizemore was dead at that time from the shotgun blast.

Continuance

Appellant contends the trial judge erred in refusing to grant his defense counsel's motion for a continuance of the trial to a later date.

During January, or the early part of February, 1974, appellant's counsel at trial talked to him about representing him. Appellant indicated he wanted to employ this counsel to represent him. About the same time, another attorney contacted appellant's trial defense counsel and informed him that he had been appointed by the court to represent appellant but was inexperienced in criminal cases and asked appellant's counsel at trial either to assist him or try the case himself. The court was informed and agreed that appellant's counsel at trial should proceed either as employed counsel or as appointed counsel.

On February 26, appellant wrote his counsel about his case and how he intended to pay for his defense. Defense counsel represented appellant at the preliminary hearing and had an opportunity to familiarize himself with the prosecution evidence. Appellant had not furnished counsel with the names of any witnesses. The witnesses he finally named were subpoenaed for him if they were within the state. Appellant was permitted to make telephone calls to contact witnesses in Tennessee. However, appellant elected not to use, at trial, the witnesses he subpoenaed.

We find no abuse of discretion by the trial judge in refusing to grant a continuance under the facts of this case. See Smith v. State, 235 Ga. 620, 221 S.E.2d 41 (1975).

Change of Venue

Appellant enumerates as error the overruling of his motion for change of venue made immediately prior to his trial. The basis for appellant's motion was his contention that extensive prejudicial pre-trial publicity concerning the crime in local newspapers and on television would prevent him from getting a fair trial in Walker County. However, the only evidence introduced in support of the motion was an article appearing on the front page of the Chattanooga Times on Wednesday, December 19, 1973, five months prior to the trial. From the discussion at the pre-trial hearings, it appears that the article reported that three suspects in the slaying of a groceryman were apprehended. Appellant, who was named in the article, was identified as the trigger man. Moreover, the article related that a lie detector test indicated that appellant was not telling the truth about the crime. In addition, appellant testified regarding an incident that occurred while he was in jail awaiting trial when a state trooper entered the jail, asked for Dobbs and then threatened to kill him.

Defense counsel also asserted at the hearing that matters relating to the crime were covered extensively on television, but he did not describe the substance of the television programs nor did he provide the date or duration of any television broadcast concerning the crime.

At voir dire, it was determined that some of the prospective jurors had received information regarding the crime from newspaper or television reports. However, they did not have any significant recollection of the crime, their knowledge being confined to the fact that a grocery store owner was reported to have been killed in a robbery. Moreover, they all stated that they had no opinion about the case and that they could be fair and impartial jurors. Defense counsel did not move to strike any prospective juror for cause on the ground they had prejudged the appellant.

Appellant failed to establish his claim that an impartial jury could not be empaneled in Walker County. The voir dire indicates that pre-trial publicity did not prejudice the case against appellant. See Jarrell v. State, 234 Ga. 410, 415(2), 216 S.E.2d 258 (1975); and, Dutton v. State, 228 Ga. 850, 851(2), 188 S.E.2d 794 (1972). Nor was there evidence which would suggest that the general atmosphere in the community or courtroom was sufficiently inflammatory to impeach the professions of indifference by the prospective jurors. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). United States v. Williams, 523 F.2d 1203 (5th Cir., 1975), is clearly distinguishable from the present case and does not authorize a different result from that reached here. Consequently, the trial court did not abuse its discretion by denying appellant's motion for change of venue. Jarrell v. State, supra. Also, see Allen v. State, 235 Ga. 709, 712, 221 S.E.2d 405 (1975).

Juror Selection

Appellant also asserts as error that 'On voir dire, the trial judge erroneously and systematically excluded all prospective jurors generally opposed to capital punishment or who expressed conscientious or religious scruples against its infliction.'

We have previously considered the standards of jury selection applicable in death cases as set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, as amplified in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433, and Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221. Witherspoon held that 'a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.' Witherspoon, supra, 391 U.S. p. 522, 88 S.Ct. p. 1777. 'Such a venireman cannot be excluded unless he makes it unmistakably clear that he would vote against the death penalty regardless of what transpires at trial, or that his attitude on the death penalty would prevent him from impartially passing on the issue of guilt, or that he could not subordinate his personal feelings on the death penalty to his oath as a juror to obey the law of the state as charged by the trial court.' Owens v. State, 233 Ga. 869, 871, 214 S.E.2d 173, 175 (1975). See Ross v. State, 233 Ga. 361, 211 S.E.2d 356 (1974); Simmons v. State, 226 Ga. 110(12), 172 S.E.2d 680 (1970); and, Miller v. State, 224 Ga. 627(8), 163 S.E.2d 730 (1968).

A review of the voir dire transcript shows that four prospective jurors were excused for cause based on scruples against imposition of the death penalty. In each case the juror stated that she was unalterably opposed to capital punishment under all circumstances. We find no...