Eberheart v. State

• Decision Date: 30 April 1974
• Docket Number: No. 28776,28776
• Citation: 232 Ga. 247,206 S.E.2d 12
• Parties: John Wallace EBERHEART, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 12

206 S.E.2d 12

232 Ga. 247

John Wallace EBERHEART, Jr. v. The STATE.

No. 28776.

Supreme Court of Georgia.

April 30, 1974.

Rehearing Denied May 21, 1974.

M. Dale English, Adel, David Evan Kendall, New York City, for appellant.

Vickers Neugent, Dist. Atty., Pearson, Arthur K. Bolton, Atty. Gen., B. Dean Grindle, Jr., Thomas P. Burke, Asst. Attys. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

This case is before this court on appeal and mandatory review of the death sentences imposed. The appellant was charged with kidnapping and rape occurring July 13, 1973; indictments were returned against him on October 1, 1973; his trial began on December 10, 1973; and sentences were imposed on December 10, 1973.

The state presented evidence to establish the following: On July 13, 1973, the victim, a 25-year-old married woman, was traveling south on highway I-75 through Georgia enroute from Detroit, Michigan, where she had just graduated from college, to join her husband in Florida. About 8:00 p.m. that day one of her automobile tires blew out near Adel in Cook County, Georgia. After waiting an hour to an hour and a half for assistance she began to try to change the tire herself.

Eddie Dean Anderson, John Wesley Hooks, the appellant John Wallace Eberheart, Jr., and two hitchhikers drove up and all except one hitchhiker got out and walked toward her. Anderson ased, 'Do you want us to change your tire?' She replied, 'No, please, just go-send help back for me.' The group departed but returned 20 to 30 minutes later without the hitchhikers and parked about six feet behind the victim's car. They got out of their car and Anderson said to her, 'Hold it, lady, there ain't anybody going to help you-there isn't anybody going to help you at all.' Hooks and appellant Eberheart came toward her and Eberheart struck her. Hooks struck her. They started beating her and she started screaming-screaming for mercy and telling them to please let her go, but Eberheart and Hooks kept hitting her. Anderson got in the car and started it. They pulled the car up next to hers. She was fighting with Eberheart and Hooks was still hitting her. She continued screaming and trying to get away. She was unable to escape. They hit her on the head, knocked her to the pavement and then started dragging her. The first blow Eberheart struck (on her head) knocked her glasses off and knocked her to the pavement. The blows dislocated her jaw, broke her nose, sheared off two of her molars, uprooted two of her teeth and split her lip. Then, they kicked her. Hooks kept hitting her and said to Eberheart, 'Open the door-get her in.' She was still fighting and Eberheart hit her a couple more times. She screamed, fought, clawed, bit and kicked and elbowed the appellant 'right in his guts.' She started bleeding. Eberheart opened the door and Hooks threw her over and assisted in pushing her into the car. Anderson drove the car off, leaving Eberheart at the scene. The victim was on the floor of the car and Hooks kept choking her and hitting her. She continued to fight and Hooks continued hitting her saying, 'Lay down, you honky bitch, or I'm going to kill you.' She continued to fight, opened a door and tried to push Hooks out. Hooks elbowed her in the face, choked her, and said, 'you . . . white bitch, if you move I'm going to break your neck.' He choked her until she could not breathe. They pulled off the interstate and Hooks said, 'Come on, you bitch, get out.' He hit her down on the pavement and kept hitting and kicking her. Hooks pulled her by her hair and dragged her across the asphalt road. In doing so her left thigh was bruised. Anderson returned to the scene of the abduction to pick up Eberheart. Hooks dragged the victim into the woods, pulled and ripped off her clothing, and raped her while she lay between two stumps infested with large red ants known locally as 'cowboys.' Hooks then forced her to commit sodomy and again raped her. Upon completion he spat on her. Eberheart and Anderson rejoined them and Eberheart raped her and forced her to commit sodomy. Anderson then raped the victim. When the three left she fled over fences and through a cornfield until she reached an occupied house trailer and asked for help. Medical examination and evidence found at the scene substantiated her testimony.

Her injuries consisted of a dislocated jaw, broken nose, numerous lacerations and bruises, concussion, teeth sheared off, a split lip, loss of hearing in her right ear and internal injuries to her stomach that continued for some time after that from being kicked in the stomach by Hooks and Eberheart (the appellant).

The appellant testified that on the night in question, although he did not know Anderson but knew Hooks, he assisted Anderson in selling some tires for which he was paid $10. Eberheart asked Anderson and Hooks if he could accompany them that evening. He alleges Anderson and Hooks abducted the victim but he Eberheart, did not touch the victim, and, 'I didn't even know what was going on.' He was left at the scene but Anderson returned for him. He was only interested in getting home. They returned to Hooks and the victim. The victim was on the ground. He and Hooks left Anderson with the victim but later returned and picked him up. He denies hitting or touching the victim or seeing her raped.

Following his conviction and sentences to death on each of the charges, Eberheart appeals to this court alleging that the trial court erred as follows:

a. 'Appellant's death sentences, imposed pursuant to Georgia Laws, 1973, pp. 159-172 (Code Ann. § 27-2534.1), are unconstitutional, cruel and unusual punishments under the rule of Furman v. Georgia, 408 U.S. 238 (1972) 92 S.Ct. 2726, 33 L.Ed.2d 346 . . .

b. 'The exclusion from the jury which determined appellant's guilt of veniremen with conscientious scruples against the death penalty violated appellant's rights under the due process and equal protection clauses of the United States Constitution.

c. 'The trial court failed to apply properly the standards of Witherspoon v. Illinois, 391 U.S. 510 (1968) (88 S.Ct. 1770, 20 L.Ed.2d 776), and erroneously allowed the exclusion for cause of veniremen who had scruples concerning capital punishment.

d. 'Exclusion of death-scrupled veniremen on the panel from which appellant's jury was selected violated appellant's Sixth Amendment right to a jury which reflects a fair and representative cross section of the community.

e. 'After request of defendant's counsel for separate examination of the jurors prior to qualifying twelve jurors in the box, before voir dire questioning, the lower court erred when it required defendant's counsel to ask voir dire questions to the entire jury list, over sixty (60) persons, en masse.

f. 'That, over the defendant's objections of irrelevancy and immaterial to the issue, the court erred in allowing the state to introduce into evidence at the first stage of a bifurcated criminal trial for rape and kidnapping, photographs of the victim which were taken two days after the alleged rape and kidnapping which showed only certain bruises and abrasions.

g. 'That, over the defendant's objections of irrelevancy and immaterial to the issue, the court erred in allowing the state to introduce into evidence at the first stage of a bifurcated criminal trial for rape and kidnapping, the clothing and earring of the victim which in themselves were not probative of either the crime or the accused's guilt or innocence.

h. 'The court erred when it charged the law of conspiracy in that there was no evidence to show that this defendant had conspired with two other parties to commit any crime.

i. 'Since the district attorney did not submit any aggravating circumstance in evidence during the second, sentence stage of the trial, the jury's sentence of death is invalid.

j. 'That the punishment sentences for kidnapping and rape should not have been accepted by the court for the reason that the death sentences only repeated the same wording given to them in the written charge.' Held:

1. The constitutionality of appellant's death sentences, imposed pursuant to Ga.L.1973, p. 159, et seq. (Code Ann. § 27-2534.1 et seq.) turns on the constitutionality of the statute in question and the constitutionality of the application of the death penalty to John Wallace Eberheart, Jr. The constitutionality of the statute was upheld in Coley v. State, 231 Ga. 829, 204 S.E.2d 612, and House v. State, 232 Ga. 140(3), 205 S.E.2d 217. The constitutionality of the application of the death penalty to the appellant in the instant case has been determined upon review of the sentences by this court pursuant to the above statute.

2. The trial court did not err in excusing for cause jurors who stated that they could not, under any circumstances, consider imposition of the death penalty.

During voir dire examination two jurors were excused for cause after stating that they could never impose the death penalty. It is unmistakably clear from their answers that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed in the case. Under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, it was not error to dismiss these jurors. Whisman v. State, 224 Ga. 793, 164 S.E.2d 719, Johnson v. State, 226 Ga. 511, 175 S.E.2d 840, Henderson v. State, 227 Ga. 68, 179 S.E.2d 76; Hart v. State, 227 Ga. 171, 179 S.E.2d 346; Pass v. State, 227 Ga. 730, 182 S.E.2d 779. There is no merit in enumerations of errors b, c, and d, all of which involve the same issue of disqualification.

3. In enumeration of error e appellant alleges, 'After request of defendant's counsel for separate examination of the jurors prior to qualifying twelve jurors in the box, before voir dire questioning, the lower court erred when it required defendant's counsel to ask voir dire questions to the...