Franklin v. State

Decision Date24 January 1980
Docket NumberNo. 35381,35381
Citation245 Ga. 141,263 S.E.2d 666
PartiesFRANKLIN v. The STATE.
CourtGeorgia Supreme Court

Dupree & Staples, Barry Staples, Marietta, for appellant.

Thomas J. Charron, Dist. Atty., Arthur K. Bolton, Atty. Gen., Susan V. Boleyn, Asst. Atty. Gen., for appellee.

HILL, Justice.

This is a death case. On the morning of January 17, 1979, Sergeant Burnis Campbell and Deputy Kenny King of the Cobb County Sheriff's Department transported four Cobb County jail inmates, one of whom was Raymond Lee Franklin, to Dr. Daniel Busch's dental office for treatment. The inmates were secured together by means of a chain; each inmate had one wrist cuffed. Franklin was the second inmate sent into the dentist's treatment room; when he returned, Deputy King released another inmate and while Sergeant Campbell escorted that inmate to the treatment room, Franklin, who had not yet been secured by the chain, seized Deputy King's pistol. At Franklin's direction, the other two inmates seized Deputy King's key and released themselves, and then took King's and Campbell's wallets and Campbell's pistol. At one point, Franklin commented that he was in for life and had nothing to lose.

Franklin obtained Dr. Busch's car keys and forced Dr. Busch's assistant, Carol Heitmuller, to leave with him. Franklin, Ms Heitmuller, and two of the other inmates left the office together. When Franklin was unable to unlock Dr. Busch's car, he told Ms. Heitmuller they were going to run; he held Deputy King's gun with the barrel in her side and they proceeded across a parking area and up a hill into some woods. They emerged into a clearing where they saw a Mr. Dempsey. Franklin yelled at him that he wanted a car; when Dempsey responded that he did not have a car, they went on and arrived at the Collie house. The house had a screen door and a wooden door with glass panes. When Franklin knocked, Claude Collie opened the wooden door. Franklin demanded his car and Collie slammed the door. Franklin then fired, fatally wounding Collie. 1 Ms. Heitmuller ran to a neighbor's house.

Mrs. Collie was in the bedroom when she heard a shot. She returned to the living room where she saw her husband collapse after saying, "I've been shot." She heard a second shot and called out to her daughter Gladys. Gladys Collie came into the living room and saw her father lying on the floor; she looked outside, saw Franklin by her car near the porch and shouted that he had killed her father. Franklin returned to the house, pointed the gun at Gladys's head and cocked the hammer. Both mother and daughter ran into other rooms. Franklin found Mrs. Collie and, placing the gun to her head, asked for the car keys. She ran out of the house. Franklin then left on foot and hid during the day.

That evening, after unsuccessfully attempting to get into a car being driven by a woman outside a Wendy's restaurant, he was seen running down the Canton Highway by two customers at Wendy's. He was arrested shortly after 8 p. m. that night behind a shoe store. The pistol he had taken from Deputy King was found several feet from where he was captured. It had two spent shells. Ballistic comparisons showed it was the gun which killed the victim. Franklin's confession corroborated the testimony of the several witnesses. Franklin was convicted of kidnapping and murder and sentenced to 20 years and to death, respectively. Viewing the evidence in the light most favorable to support the verdict, a rational trier of fact could have found the defendant guilty of these crimes beyond a reasonable doubt.

1. Franklin filed timely challenges to the composition of the grand jury in Cobb County and the petit jury in Bibb County, alleging that each was selected in violation of Code Ann. § 59-112. 2 After hearing evidence, the trial court ruled against him; in his first two enumerations of error he appeals those rulings. His complaint is founded not on the Constitution but on alleged violations of the statute. 3

Code Ann. § 59-112 provides: "(a) The following persons are exempt from all jury duty, civil or criminal; the name of any such person shall not be included or continued in the jury box unless such person shall make a request therefor in writing to the board of jury commissioners or its clerk:

"1. Police and other law enforcement officers employed or appointed on a full-time basis, but not part-time or honorary peace officers.

"2. Officers and personnel of any court employed or appointed on a full-time basis, including attorneys at law "3. Officers, firemen and other personnel of any fire department employed or appointed on a full-time basis . . .

"4. Physicians, surgeons, medical interns, and medical technicians actively engaged as such . . .

"5. Dentists and pharmacists, duly licensed, who are actively engaged in the practice of their profession.

"(b) Any other person who shows that he will be engaged during his term of required service in work necessary to the public health, safety, or good order, or that she is a housewife with children 14 years of age or younger may be excused by the judge of the court to which he has been summoned or by some other person who has been duly appointed by order of the chief judge to excuse jurors. Such a person may exercise such authority only after the establishment by court order of guidelines governing such excuses. Any such order of appointment shall provide that, except for permanently mentally or physically disabled persons, all excuses shall be deferred to a date and time certain within that term or the next succeeding term or shall be deferred as set forth in the court order. . . .

"(d) Any teacher or principal of this State who does not desire to serve upon juries shall notify the jury commissioners of the county in which he or she resides in writing to that effect, and thereupon the jury commissioners shall not place the name of such teacher or principal in the jury box for said county.

"(e) Any person who is 65 years of age or older who does desire to serve upon juries shall notify the jury commissioners of the county in which such person resides in writing to that effect, and thereupon the jury commissioners shall place the name of such person in the jury box for said county." (Emphasis supplied.)

In support of his motion challenging the Cobb County grand jury, Franklin called as a witness the Clerk of the Superior Court of the Cobb Judicial Circuit, who also served as the clerk of the jury commissioners and as acting court administrator. He testified that the grand jury list was compiled by random selection from the 1977 list of registered voters. A computer selects 1,000 names (the "ready list") and prints a notice which is sent to each individual advising them that they will be receiving a summons for jury service within the next ninety days. 4 Along with the notice, each individual is sent instructions as to legal exemptions. When the individuals summoned communicate with the court administrator's office regarding exemptions, most speak with the court administrator's secretary, although some are excused by the court administrator or by a judge. 5 The court administrator and his secretary operate under oral orders of the judges issued in 1969 or 1970. Under these instructions, individuals were to be excused for statutory reasons or business hardship reasons; for example, the operator of a one person business would be excused. Apparently students and military personnel on active duty were also regularly excused. Individuals with other excuses were referred to a judge. Where possible, jurors are rescheduled instead of being permanently excused. No investigation of excuses transmitted by telephone is carried out.

In regard to the challenge to the array of petit jurors in Bibb County, the parties stipulated certain facts obtained from the Clerk of the Bibb Superior Court, and the stipulations were amplified by the testimony of the clerk. The evidence showed that every other voter on the most recently revised voters' list is sent a jury questionnaire on a computer card; the reverse of the card recites the statutory exemptions. When the voters send the cards back, the jury commissioners and the clerk of the court pass on claimed exemptions. Summons are then sent to those not exempted at that stage. Excuses transmitted by telephone are handled by the clerk or, on rare occasions, by the deputy clerk. The only non-statutory excuse mentioned in the evidence is the clerk's statement that individuals who had paid non-refundable deposits on vacations would be allowed to postpone jury duty. In reference to this and other non-permanent excuses, the clerk testified that the names of such individuals were retained and the "call-backs" were in fact recalled for jury duty. The clerk also testified that he handled exemptions and excuses for a number of years under the former chief judge and that he did not recall receiving any specific instructions from him, but that it was his understanding that he could exercise some discretion in allowing temporary excuses, but only statutory excuses authorized permanent exemption. When the former chief judge retired, the clerk spoke with the current chief judge, who authorized him to continue in the same manner, subject to any modification the new chief judge might deem advisable.

Franklin argues that the practices outlined violate Code Ann. § 59-112, supra, because in neither county is there a written order establishing guidelines and appointing someone to implement them, and because non-statutory excuses are allowed. He also argues that the counties must investigate alleged exemptions and excuses to ascertain their validity.

The answer to these contentions is found in Hulsey v. State, 172 Ga. 797, 808, 159 S.E. 270, 275 (1931), where the court said: "In Rafe v. State, 20 Ga. 60, it was said: 'The Statutes for selecting Jurors, drawing...

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