Ford v. State

• Decision Date: 29 October 1985
• Docket Number: No. 42154,42154
• Citation: 335 S.E.2d 567,255 Ga. 81
• Parties: FORD v. The STATE.
• Court: Georgia Supreme Court

Page 567

335 S.E.2d 567

255 Ga. 81

FORD v. The STATE.

No. 42154.

Supreme Court of Georgia.

Oct. 29, 1985.

[255 Ga. 96] C. Nelson Jarnagin, Harvey & Jarnagin, Atlanta, for James A. ford, jr.

Arthur E. Mallory, III, Dist. Atty., LaGrange, Michael J. Bowers, Atty. Gen., Atlanta, Dennis R. Dunn, Staff Asst. Atty. Gen., for the State.

SMITH, Justice.

This is a death penalty case. Appellant, James A. Ford, was convicted in Coweta County of armed robbery, rape, kidnapping with bodily injury, burglary, and murder. The case is here on direct appeal, for review under the Unified Appeal Procedure (252 Ga. A-13 et seq.), and for the sentence review required by OCGA § 17-10-35. ¹ We affirm.

FACTS

The victim, Sarah Dean, managed the J & L gas station in Newnan. She usually began work at 6:00 a.m. Shortly after 5:00 a.m. on March 1, 1984, a burglar alarm went off at the station. Police responding to the call found the front door unlocked but nothing else out of the ordinary; however, attempts to contact Mrs. Dean were unsuccessful. Pending the arrival of the district supervisor from Marietta, the door was re-locked and the police left.

Soon afterwards, an employee of a neighboring business observed a small black male exiting J & L by a window, and contacted the police. Acting on information obtained from his mother, police questioned Steve Cox, who was found to be in possession of keys to the J & L station. Cox implicated Ford, and, shortly before 2:00 p.m., a warrant was obtained for the latter's arrest.

At approximately 3:00 p.m., Sarah Dean's automobile was located, submerged to its roof in a pond. After pulling the car out with a wrecker, police used the keys (which were in the ignition) to open the trunk, where they discovered the body of Sarah Dean.

Three hours later, Ford was arrested, after a high-speed automobile chase. He was found to be in possession of over $2000.

Ford subsequently gave a written confession, which can be summarized as follows: He and Steve Cox, having decided to get some money to pay a fine, arrived at J & L just as the victim was preparing to leave, and forced their way into her car. Ford drove to a secluded area, where they undressed Cox testified at trial. His testimony was generally consistent with Ford's confession, except he claimed that only Ford raped the victim. In addition, he testified that when they first entered the victim's car, Ford held a butcher knife to the victim's neck; that Ford threatened to kill the victim during the rape and again while they were at the tavern; that Ford responded to the victim's plea for mercy by telling her to "shut up;" and that as the car rolled into the pond, Cox could hear the victim beating on the trunk-lid.

the victim and "had sex" with her. Afterwards, they put her in the trunk and drove around--buying marijuana with money they found in the victim's purse; driving to Atlanta, where Ford visited a girlfriend; and returning to Newnan, where they spent an hour in a tavern. Next, they drove to a more secluded area. Ford opened the trunk and hit the victim on the head with a road sign. Finally, they pushed the car into a pond (with the victim still in the trunk). After disposing of the victim, the two returned to J & L on foot and used the victim's keys to enter the station. Ford got "a large amount of money out of the cabinet," and left by the front door when the police arrived.

Ricky Wright testified that on the morning of March 1 he and Ford went shopping in Atlanta. En route, Ford admitted to Wright that he had burglarized J & L, raped the woman who managed it, put her in the trunk of her car and pushed the car into a pond. According to Wright, Ford was laughing and smiling as he described the crime. Wright testified that Ford had a large sum of money and gave Wright $150.

An autopsy established that the victim had drowned. Serological examination of vaginal swabbings positively established that sexual intercourse had recently occurred. Hairs found on the victim were consistent with having come from Ford (and inconsistent with having come from Cox).

The evidence overwhelmingly establishes Ford's guilt, and, therefore, more than suffices to meet the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

ENUMERATIONS OF ERROR

1. In his 2nd enumeration, Ford contends that the prosecutor's use of peremptory strikes to remove 9 of 10 possible black jurors denied Ford his right to a jury comprised of a fair cross-section of the community. (One black served on the jury.) Ford has shown only that a large percentage--but not all--of black prospective jurors were peremptorily struck by the prosecution in this case. "He has failed to establish a systematic exclusion of black jurors, leading to a general condition that black citizens do not serve on criminal trial juries in the circuit." Moore v. State, 254 Ga. 525, 529(2(b)), 330 S.E.2d 717 (1985). Accordingly, we find no error here.

2. Prior to trial, the state reached an agreement with Steve Cox whereby, in exchange for his truthful testimony, he would be prosecuted only for armed robbery and burglary and the state would recommend "life plus 20," or, in other words, the maximum sentences for these crimes. The state, of course, was constitutionally required to and did reveal this information to Ford. Owens v. State, 251 Ga. 313(1), 305 S.E.2d 102 (1983).

When Cox testified, the state lost no time in addressing this subject. When the state asked Cox what sentence he was going to get, Cox answered, "Six years." As the state prepared to refresh his recollection, the court interrupted to state: "Let me tell you right here and now you're not going to get any six years, do you understand that?" The state then proceeded to establish Cox's understanding that the recommended sentence was going to be life plus 20 years, and not 6 years.

In his 3rd enumeration of error, Ford contends that the court's comment was an improper expression of opinion. See OCGA 3. The trial court did not abuse its discretion by denying Ford's motion for sequestered voir dire. Finney v. State, 253 Ga. 346(2), 320 S.E.2d 147 (1984). Enumeration 5 is without merit.

                §   17-8-[255 Ga. 84] 57. 2  We need not determine whether this code section actually was violated, inasmuch as Ford neither objected nor moved for a mistrial.  State v. Griffin, 240 Ga. 470, 241 S.E.2d 230 (1978).  We note, however, that Ford does not, even now, contest the truth of the court's comment, see Abbott v. State, 91 Ga.App. 380(3), 85 S.E.2d 615 (1955), or contend otherwise than that regardless of the court's comment, the state had a constitutional duty to correct Cox's misconception, see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and if, as a result, Cox's credibility was adversely affected, Ford plainly was benefited thereby
                

4. Regarding Ford's 6th enumeration, we find that the trial court did not err by refusing to grant Ford extra peremptory strikes, in addition to the 20 authorized by OCGA § 15-12-165.

5. Enumeration 7 complains of the trial court's refusal to change venue. Although almost all of the prospective jurors had heard at least something about the case, in view of the limited amount of prejudicial pre-trial publicity shown in this case, and the low percentage of veniremen excused for bias, prejudice or fixed opinion (5 of 60 or 8%), ³ the trial court did not err. Devier v. State, 253 Ga. 604(4), 323 S.E.2d 150 (1984); Waters v. State, 248 Ga. 355(1), 283 S.E.2d 238 (1981).

6. After his arrest, Ford gave two statements. The trial court excluded the second statement but ruled that the first statement was voluntary and admissible. ⁴ In his 8th enumeration, Ford complains of the court's refusal to exclude the first statement.

Ford was advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and signed a form waiving those rights after officers read the form and explained each portion of the form as they went along. In view of the lack of any evidence of threats or promises by the officers, or of a request for an attorney by Ford, the court did not err by finding the confession to have been voluntary.

7. We adhere to our position that the practice of death-qualification of jurors is not unconstitutional, Mincey v. State, 251 Ga. 255(2), 304 S.E.2d 882 (1983), despite the Eighth Circuit Court of Appeals' holding to the contrary. See Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985). We agree with the Missouri Supreme Court that Grigsby is contrary not only to the overwhelming weight of state and federal authority but also to Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). State v. Nave, 694 S.W.2d 729 (Mo.1985). Therefore, we find enumeration 9 to be without merit.

8. After trial, Ford's family retained a private attorney to represent him in the post-conviction proceedings, including the motion for new trial and the appeal. The court-appointed trial attorney was dismissed. Ford contends in his 4th enumeration of error that his trial attorney rendered ineffective assistance of counsel, particularly at the sentencing phase of the trial.

"The bench mark for judging any claim of ineffectiveness must be The complaining defendant must make both showings. His failure "to establish either the performance or the prejudice component results in denial of his Sixth Amendment claim." King v. Strickland, 748 F.2d 1462, 1463 (11th Cir.1984). A reviewing court need not "address both components if the defendant makes an insufficient showing on one," Washington v. Strickland, supra at ----, 104 S.Ct. at 2069, nor must the components be addressed in any particular order. Ibid.

whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, ----, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1...