Ford v. State

• Citation: 257 Ga. 461,360 S.E.2d 258
• Decision Date: 24 September 1987
• Docket Number: No. 44292,44292
• Parties: FORD v. The STATE.
• Court: Supreme Court of Georgia

Page 258

360 S.E.2d 258

257 Ga. 461

FORD v. The STATE.

No. 44292.

Supreme Court of Georgia.

Sept. 24, 1987.

Reconsideration Denied Oct. 7, 1987.

[257 Ga. 468] John P. Howell, Crudup & Howell, Covington, for Melbert Ray ford, jr.

John M. Ott, Dist. Atty., Covington, Michael J. Bowers, Atty. Gen., Paula K. Smith, Asst. Atty. Gen., for the State.

WELTNER, Justice.

Melbert Ray Ford, Jr., was found guilty by a Newton County jury of murdering his former female companion, Martha Chapman Matich, and her 11-year-old niece, Lisa Chapman, and of committing the offenses of armed robbery, burglary, and possession of a firearm during the commission of a felony. He was sentenced to death on each of the murder convictions. ¹

FACTS

After his relationship with Martha Matich broke up, Ford began harassing her by telephone. Two weeks prior to her death, Ford told a friend of his that he "was going to blow her ... brains out." The day before her death, Ford unsuccessfully tried to convince a friend to drive him to the convenience store where Matich worked. Ford told the friend that he planned to rob the store and work revenge upon Matich by killing her.

On March 6, 1986, Ford talked to several people about robbing the store. He told one that he intended to kidnap Ms. Matich, take her into the woods, make her beg, and then shoot her in the forehead. Ford tried to talk another into helping him with his robbery (Ford had no car). When this effort failed, Ford responded that "there wasn't anybody crazy around here anymore."

Finally, Ford met 19-year-old Roger Turner, who was out of a job and nearly out of money. By plying him with alcohol, and promising him that they could easily acquire eight thousand dollars, Ford persuaded Turner to help him.

They drove in Turner's car to Chapman's Grocery, arriving just after closing time. Ford shot away the lower half of the locked and barred glass door and entered the store. Turner, waiting in the car, heard screams and gunshots. Then Ford ran from the store to the car, carrying a bag of money.

At 10:20 p.m., the store's burglar alarm sounded. A Newton County sheriff's deputy arrived at 10:27 p.m. Ms. Matich was lying dead behind the counter, shot three times. Lisa Chapman was discovered in the bathroom, shot in the head but still alive, sitting on a bucket, bleeding from the head, and having convulsions. She could answer no questions. She died later.

Ford and Turner were arrested the next day. Turner confessed first and was brought into Ford's interrogation room to state to Ford that he had told the truth. Ford told him not to worry, that Turner was not involved in the murders. Afterwards, Ford told his interrogators that the shooting began after Martha Matich pushed the alarm button. He stated that, had he worn a mask, it would not have happened.

Ford claimed at trial that he was too drunk to know what was happening, and that it was Turner who entered the store and killed the victims.

ISSUES ²

1. In division one of his brief, Ford raises a number of constitutional objections to

Georgia death penalty procedures, both generally and as applied to this case. Many of these arguments are resolved contrary to his contentions by Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), and McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987).

In addition, he complains that, under our statutory death penalty procedure, all defendants convicted of both burglary and armed robbery in addition to murder enter the sentencing phase of the trial with two "built-in" statutory aggravating circumstances, allowing the state to obtain a death sentence without presenting any aggravating evidence at the sentencing phase of the trial. In such a case, Ford argues, the § b(2) statutory aggravating circumstances fail to narrow the class of death-eligible persons. See OCGA § 17-10-30(b)(2).

This argument runs counter to the nature of aggravating evidence. It is true that a statutory aggravating circumstance "must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). See also, e.g., Davis v. State, 255 Ga. 588 (3c) 340 S.E.2d 862 (1986). But it is not true that only evidence presented at the sentencing phase may be considered in aggravation.

The factors normally considered in sentencing are (1) the character of the defendant, including his previous criminal activity, if any, and (2) the circumstances of the crime on trial. See, e.g., Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976).

Death penalty trials are bifurcated so that matters relevant to sentence, but irrelevant and prejudicial on the question of guilt--for example, a defendant's bad character and criminal record--can be withheld during the determination of guilt but can still be considered on the question of sentence. Eberheart v. State, 232 Ga. 247, 253, 206 S.E.2d 12 (1974). See also Gregg v. Georgia, supra, 428 U.S. at 190-91, 96 S.Ct. at 2933.

Unlike bad-character evidence, the circumstances of the offense are relevant both to guilt and to sentence, and evidence of the circumstances of the offense will be offered, usually, during the guilt-innocence phase of the trial. This evidence does not have to be re-presented at the sentencing phase of the trial in order to be considered on the question of sentence. The sentencing hearing "is for additional evidence and in no way excludes from consideration on sentence the matters heard on the issue of guilt or innocence." Eberheart v. State, supra.

Ford was eligible for the death penalty because in addition to committing murder, he contemporaneously committed a second murder, and armed robbery and burglary. OCGA § 17-10-30(b)(2). Inasmuch as not all crimes of murder involve the contemporaneous commission of additional serious offenses, the § b(2) aggravating circumstance establishes a "second plane," separating "from all murder cases those in which the penalty of death is a possible punishment." Zant v. Stephens, 250 Ga. 97, 99, 297 S.E.2d 1 (1982). See also, Jefferson v. State, 256 Ga. 821, 828-830, 353 S.E.2d 468 (1987). Proof that a defendant has committed several serious crimes in addition to a single murder reasonably justifies the imposition of a more severe sentence.

In this case, the jury found that the murder of Lisa Chapman was committed while the defendant was engaged in the commission of the offenses of armed robbery and burglary, and that the murder of Martha Chapman Matich was committed while the defendant was engaged in the commission of the offenses of murder (of Lisa Chapman), armed robbery, and burglary. These findings properly support the death sentences imposed in this case, notwithstanding that all the evidence supporting

these findings was introduced at the guilt-innocence phase of the trial.

2. Next, Ford argues that Georgia law unconstitutionally requires the imposition of the death penalty whenever mitigating circumstances do not outweigh aggravating circumstances.

We note that several states whose death penalty laws have been upheld by the U.S. Supreme Court require a jury to weigh the aggravating circumstances against the mitigating circumstances, and to impose a death sentence if the evidence in aggravation outweighs the evidence in mitigation. See Zant v. Stephens, supra, 103 S.Ct. at 2741 (fn. 12). However, that is not the case in Georgia.

In this state, juries are not required to balance aggravating circumstances against mitigating circumstances. Rather, the death sentence may be considered only if the state establishes beyond a reasonable doubt at least one of the statutory aggravating circumstances set forth in OCGA § 17-10-30, and if such a circumstance is established, the jury nonetheless "may withhold the death penalty for any reason, or without any reason." Smith v. Francis, 253 Ga. 782, 787, 325 S.E.2d 362 (1985). See also Zant v. Stephens, supra, 250 Ga. at 100, 297 S.E.2d 1.

Contrary to the defendant's argument, no presumption ever arises under Georgia law that a death sentence should be imposed, nor does the law place any burden of proof upon the defendant.

3. Death qualification of prospective jurors is not unconstitutional. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). The trial court did not err by excusing prospective juror Gibbs after she answered that she could not vote to impose a death sentence regardless of the facts and circumstances of the case. Alderman v. State, 254 Ga. 206(4), 327 S.E.2d 168 (1985).

4. The trial court conducted the voir dire by first examining prospective jurors with regard to publicity and feelings about the death penalty. Thirty-four of the sixty jurors who were questioned in this regard answered that they had "read, heard or seen" something about the case. These 34 were examined "individually in chambers." Three were excused, one because of conscientious objection to the death penalty, and two others because they "indicated some pre-existing feelings about the case, which they said would make it difficult ... or impossible for them to decide the case impartially ..."

The trial court observed that "[n]o other jurors who were examined individually while being sequestered indicated any bias, leaning or prejudice or preconceived ideas at all about the case based upon any news reports or street talk or any other source of information they may have had about the case."

The court determined that the defendant could receive a fair trial in Newton County. We find no error in the denial of the defendant's motion for change of venue. Curry v. State, 255 Ga. 215 (2g), 336 S.E.2d 762 (1985).

Ford also contends that the court unnecessarily restricted the scope of the voir dire examination and denied him the...